Island Life by David Slack

One law for all New Zealanders

We live in an age of sound bites, talking points, and simple political slogans. If you want to win an election campaign, you need to make your message as concise and punchy as possible. You may have only seconds to make your pitch before the bored TV viewer reaches for the remote, or clicks their mouse along to another web site. What's a poor politician to do? Well, here's one thing you can do: take a tricky issue that really gets people's backs up, and tell them there's a nice simple solution to it.
One law for all New Zealanders has a nice ring to it, don't you think? The trouble is, a nice simple solution is really just a new jar of snake oil if it won't actually work.

Thus begins the final chapter of Bullshit Backlash and Bleeding Hearts. It seemed to me as I heard Dr Brash winding up the trusty gramophone again that if he's planning to reprise last year's hit single, I might reprise my own. Here's how the rest of the chapter ran...

Let's see what we can make of this. What's the problem, and what might be the solution?

Our history tells us that we have a problem today because of one that began 150 years ago. Two parties signed an agreement to work with one another to share this corner of the world. The hope was that both parties would benefit from what the other had to offer. But one party welshed on the deal. The settlers got what they wanted - land - and failed to deliver what Maori though they would get - an active role in the growing economy. Instead, their economic base - their land - was gone, and they had to make their way with little to support them. Late in the piece, but not too late for it not to work - successive governments have taken steps to put Maori back on the footing they otherwise would have had. Settlements and new policies have had significant results. The culture has come back from the brink, and today it's flourishing.

You can attribute the recovery to several strands of government policy - belated recognition of the Treaty, a worldwide trend towards recognising the rights of indigenous people, and the social policy that all welfare states have practiced over the past hundred years or so. You can also attribute some of the tangle we have - and the mess - that so vexes Dr Brash - to the mingling of those strands.

Dr Brash says we can fix this some of this by taking all Treaty references out of legislation. The trouble is, it could turn out to bit like one of those simple snake oil solutions that could create more problems than it would cure. Michael Cullen takes issue with the interpretation the policy implies.

What Brash is really saying is there are no contemporary expectations which are legitimate under the Treaty and he's really saying that the Treaty is just a historical document and if we nicked land off the Maori in the 19th century then that's awful and we should sort of pay a bit more over to compensate for that but beyond that it has no real relevance today.

Now I think that's profoundly wrong and will be profoundly divisive. It will shut up talkback land for a while, until the reaction starts occurring. And as I said ...when Brash and I debated [this]: 'Well you may think you can say that you'll take all the Treaty references out of the legislation, but the lawyers and the judges will quickly collude to put it all back in again through case law. Don't think this will stop this stuff happening. It certainly won't.'

So with a huge Maori renaissance you're going to say 'Sorry, we don't really like any of it, and you're going to be just New Zealanders, fullstop.'? It's a non-deliverable, as business people like to say.

An alternative solution- such as that suggested by Matthew Palmer - might be more workable. The problem, he says, in teh vagueness of legislation drafted to "have regard to the principles of the Treaty of Waitangi". The inherent uncertainties are left to the courts to work it out. But if you look carefully at the legislation begin drafted you can ask specific questions: what are the Treaty issues that come up here? How do we address them specifically, and what rules and requirements should be in here? That gets you down to a manageable, specific level, where common sense can prevail. Everyone can have their say, debate the specifics and hammer out an agreement about what should be in the legislation.

In Canada, in the United States and Australia, the same issues arise. They come up under different legal headings in US and Canada, they talk about aboriginal title. And they have negotiations, they have settlements of aboriginal title claims, rather than Treaty claims, And they talk about self-government. The same underlying dynamics are there in terms of the underlying relationships. The same is true here, which means that if we didn't have a Treaty of Waitangi, the same issues would come up under some heading or other, whether it be aboriginal title, customary rights or something else.

Similarly, I think that if one branch of government fails to deal with the issues then another one will have to. Now I actually think that it's better for Parliament to deal with these issues because you've got more direct democratic influence and these are essentially policy issues which parliament is equipped to consider. But if Parliament doesn't deal with them and they don't get considered properly in legislation, then you will find the courts having to deal with them and if Parliament doesn't, for example, spell out what it thinks the Treaty means, the courts will have to do it in a particular context.

And at a constitutional level, if Parliament keeps avoiding what the constitutional place of the treaty is, then the courts may well at some point feel that in the interests of clarifying our constitutional arrangements, they will have to declare what its constitutional place is.

...So it's not that the court would say that Parliament can override the Treaty, but it may be that a court - and I could quite easily see a court saying this in the right circumstances - would be prepared to say, if Parliament's going to act inconsistently with the Treaty given everything it's said and everything the Crown said, they need to do so explicitly.

The implication of that is you'll either have a whole lot of legislation saying this abrogates the Treaty of Waitangi, which is going to be a problem, or you're going to have a whole lot of legislation that doesn't say that in which case the Treaty is superior to it. So I think it would be in Parliament's interest to work out this question before the courts get to that.

So to remove Treaty references from would effectively also remove the main mechanism for resolving differnces and disputes?

I think so, because if you're Maori and you have a problem with government policy, then at the moment, you can go to court, in quite a lot of areas and say 'You're not complying with the need to consult with us' …If that goes then what do you do? You probably take direct protest action and I think that is likely not to be as healthy as dialogue.

Of course, taking out treaty references is not the sum total of Dr Brush's prescription. He also asserts that there should be one law for all - no preferences, no allowances on the basis of race, and claims that current policy is divisive.

Margaret Wilson takes issue with this one-size-fits-all approach, which she characterises as 'Everyone has to be like me in all aspects of life.'

It's actually quite rigid, and I'd say that many European New Zealanders actually don't subscribe to that either… It's a very authoritarian and if I might say, quite a simplistic notion of it.

I don't know why people are so afraid of difference, because it's essentially part of who we are and that's why, I think, if you actually analyse what Don Brash and them are saying it just is a denial of history and reality of how people organise themselves.

I think ultimately the balance will be being rectified with people saying 'No no that's not quite what we want. But we don't like people ripping off the system. We don't like them getting more than we do.' And that's actually a characteristic of pretty much all New Zealanders.

Sir Tipene O'Regan sees history repeating itself in the one law to rule them all idea.

The most extraordinary thing in the Brash Orewa speech is ...It's all there in the 19th Century Hansard. Same argument. The principal arguments advanced in the New Zealand Settlements Act for the dispossession of Maori of their assets was one law for all. Rights and privileges of British citizens. One law for all. It's a whole assimilation urge. And the fascinating thing is they don't really mean it.

Okay. Let's say we don't follow the one law for all path, but we still want to get things a little clearer than they are right now. Would a Commission of Inquiry help? Sir Doug Graham wonders if it would get off the ground and wonders if it does, what it's going to do.

It might actually do more harm than good, in a funny sort of a way. A lot of these things you're just better to get on with it. And sometimes, the less people know the better, you know, realistically.

Perhaps, then, you're better off to let sleeping dogs lie. Trouble is, they all barking, madly, at the moment. If we want to work out how we mesh together social policy, rights of indigenous people, the Treaty, and - as the foreshore debate has shown us - aboriginal title, we probably need to take a systematic and comprehensive look at the whole thing. A Commission would be no bad way to work that out. Handled well, it could well come up a lot of fresh thinking about the place of the Treaty in our lives. Moana Maniapoto:

We need to encourage visionary, pioneering, creativity that might lead to fundamental change to establish a new set-up that will operate within the Treaty relationship.

I think there is far more synergy between Maori and Pakeha (especially those feeling the brunt of government policies) but politicians and the media historically tend to scapegoat Maori for every ill.

In fact, she argues, Pakeha have a lot to be thankful for because Maori have a history of consistently challenging the status quo and leading attacks on globalisation and all its practices:

We have a history of creating models that inspire other peoples around the world and there is no reason why those models won't work for non-Maori here in NZ.

She also thinks there should be a full and frank discussion about tino rangatiratanga, and what that means.

It's at the very essence of the debate and no one from the Crown is prepared to even engage at that level.

Sir Tipene thinks you should be re-articulating the Treaty through time as circumstances change:

What about the other immigrants who are coming in who are not part of the Maori/Pakeha bicultural bloc? You've got to have some sort of articulation of that because the Treaty contemplated the arrival of new people. You wouldn't have had it if it didn't contemplate that.

Anne Salmond has been considering some of the issues that flow on from that.
Could it be that as our society evolves, the old bicultural way of looking
at this whole issue is being overtaken?

There is increasingly a consumer attitude to culture among New Zealanders -
you can go to your little boutique culture and pick some bits out of that
and you go to the next one and take bits out of that and then play with the
combinations. You can see that in many art forms in New Zealand at the
moment. There is a great deal of experimentation going on. It's more serious
than consumerist, but the artists are certainly doing things which don't fit
a binary model.

She points out that in New Zealand, many people have very diverse whakapapa,
and the way they assert their identity won't necessarily follow any conventional model.

When I think, for example, about my students at university, many of them
have complex genealogies - you talk to them, and they'll say 'I'm a little bit Jewish, a bit German, a bit Samoan, and I'm a little bit European' and they want to be all of these things and feel good about it. They don't want to have to split themselves in half or into the various fragments to fit a purist cultural model.

Salmond sees cultures borrowing from one another and responding to changing circumstances. As they come in contact with some other tradition, the bits they like, they take. Maori and Pakeha have done so over the last couple of hundred years, she argues, very actively.

This idea of pure culture is mythological, and possibly quite dangerous. Like pure race, pure culture - this idea that you have a pure essence which remains intact over time and has to be protected at all costs. Well, we know what happened in the history of Europe with that kind of idea. Often the outcomes are not very pretty.

She wonders if current interpretations of the Treaty that see ours as a kind
of binary society split down the middle - with Maori people on one side [of
it] and Pakeha people on the other - do justice to the heritage of the

We have had 200 years of swapping with each other, genes, language, and so
by now, the binary model is fictional. And possibly quite perilous. I support the Treaty settlements because major grievances arose from the fact that the promises made in the Treaty were not honoured. It was signed by the Crown, those were serious promises. The honour of the Crown has always been at stake in the Treaty. But it also allows for whakapapas to join. People get married and end up with a foot in both camps - that should be a basis on which we go forward together, rather than seeing the Treaty as an instrument which cuts us in half as a nation.

She says that the Treaty lays down some ways of working amongst ourselves as New Zealanders that can be applied to everyone.

The model of good relationships, dealing with each other in a way which is
mutually respectful, honouring the traditions of both sides, accepting that they have done a lot of exchanging in the last couple of hundred years, that's a great way to go forward.

Maybe this is a better way of looking at the issues than the binary Crown/Maori model. She offers the example of art and culture and the way ideas are blending and cross-pollinating. A binary model doesn't describe that accurately, she thinks. You have people coming together, going to school together, their kids meet and marry and have babies together. It adds up to a new reality, she says, in places like Auckland.

That's going to be the seedbed, I think, of a new vision of the country. I'm not quite sure exactly what it's going to look like. But the mingling is positive, it's great. Tikanga Maori is at the heart of it, but not in a binary relationship.

Being less legalistic and programmatic in our thinking about the Treaty, says Salmond, would help. She sees us wrestling with two competing models, neither of which is actually going to work- the idea of two peoples working together according to the terms of the Treaty, and the 'one law for all New Zealanders' view that would have any differences in treatment being made solely on the basis of need.

The problem with the first model, Salmond argues, is that it doesn't fit. One solution might be to draft legislation, as Matthew Palmer suggests, with a greater degree of specificity, but be guided in the drafting by those broad ideas of the Treaty as a basis for good working relationships between peoples. You would do what was necessary to maintain the wellbeing of the indigenous culture, but you'd aim to do it in a way that reflected the mixing and blending of the cultures that's going on.

Wherever the debate takes us, for now we know that Treaty matters a great deal to many Maori. Michael Cullen points out that it was all they had to hang on to for a long period of time when everything went the wrong way for them.

They placed their faith in a legal process trying to achieve some kind of outcome and then we rip all of that away - and that's the thing about the foreshore and seabed - which still makes me feel a bit queasy. I mean we are sort of, to some extent pulling the mat out when a victory has been gained.

Now I can intellectually and morally justify it, I think, but let's not pretend there's not an issue there. Of course there is an issue there. And now to say 'Well, sorry. Having done all that, we're now going to say this is irrelevant just when it's starting to mean something and you're starting to see some gains out of it'- what do we expect the Maori reaction to be to that?

It's going to be one of deep resentment and deep anger in response. Is that good for us all? No, it's not. It's bad for us all if that happens.

Doug Graham says he's not pessimistic about the direction the debate's taken lately.

We're a great little country and we'll work our way through it. You get people shouting at each end a bit, but by and large most New Zealanders are pretty fair and they can size something up. As I said on that Marae programme the other day, no-one's trying to do Maori down. I've never met anybody's who's trying to screw them, but they do expect them to stand on their own feet a bit and get on with things. And I do too.

Would he see the Treaty becoming less significant over time?

Well, I don't worry about it being a living document, but Don [Brash] seems to think it's difficult, and I'm not too worried about the principles in the Treaty either because none of them are terribly earth-shattering. But it shouldn't be regarded as some sort of panacea for everything. That's what it's come to be. You know: I've got rights here, my rights under the treaty, passports! I mean it's all nonsense.

Pita Sharples was on the radio one day recently and he was talking .. he was quite angry. And then he rattled off what Maori wanted. None of it was outrageous and I really couldn't see why he was so angry [and] he said Maori fundamentally want to be recognised as Maori in their own country. Why shouldn't they? But nobody thinks about it in that sense. They think 'We're all New Zealanders'. Now to a Maori that means: Oh, I've got to be sort of pseudo-white. I don't want to be pseudo-white, I'm a Maori. Whereas we say Oh no, that's not we meant at all. It means you can be Maori alright, but we're all New Zealanders. So it's just looking at it from two different angles.

John Tamihere thinks says that we don't give ourselves credit for what we've done in such a short timeframe.

If you look at [Tony] Blair, his ancestors are 100 years down the road with the Irish - still working on it and blood and guts all over the place. And so if you start to look around the world, this melting pot here is doing extraordinarily well."

I go to a school and because of stereotype they give me a Powhiri. But the school is 95% Pakeha. There's only a few Maori kids, but the kapa haka group is rockin' - and it's all Pakeha kids…And they're going to be the new generation of Kiwis that will be shaping our opinion about ourselves in the next ten, fifteen years… We just need to ensure that we get through to conclude unfinished business.

The biggest problem I've got with the Brash attack is that in little old Brashville, they just don't have that base information, you know - Doug [Graham] and them got away on them for over a decade - simple as that. So we can help them catch up, that's not a problem. [Some of them won't catch up but] we've got some bloody drongos in our outfit too, you know. Like Harawira's not going to move. She's in a time warp. This nation doesn't like that, whether its middle Maori or middle Pakeha, we don't like that nonsense on the extremes. You know, it's pretty good that they're polarising the debate because most of us want to be in the middle of it, we don't want to be on the extremes.

One way to avoid the extremes is to keep a sense of proportion. Let's consider what we've seen in this story. Are settlements costing us fortune? Hardly. Is the settlement process out of control? No. How substantial are the preferential rights Maori are alleged to get? Pretty slight, actually. We've made some good progress. Giving more voice to Maori and sharing more power has brought about some impressive changes. Maori business, Maori culture, Maori language, are all much stronger than they were one and two decades ago. The renaissance has given many Maori a new sense of purpose and possibility and they're taking advantage of it. Why would we want to undermine that?

When you look at Ngai Tahu nearly doubling the value of their Treaty settlement in just a few years, do you feel excited about that or not? When you see greater numbers of Maori students in the tertiary system than ever before, do you feel more or less confident about the future? When you see a flourishing Maori culture in our schools, and kids engaged by it and more motivated to learn, do you see that as a good or bad thing? Wouldn't you like to see more of that?

In the last radio interview historian Michael King gave, he asked about the division that had been created in the wake of the Orewa speech. He said he thought you couldn't measure the seriousness of the problem by the intensity of the rhetoric.

It's less than a decade ago when there was a huge argument going on over the National Government's fiscal envelope proposal, when they were saying they would restrict Waitangi Treaty settlements to a total of a billion dollars. That caused an uproar at hui up and down the country, it caused Sir Charles Bennett to say that he would advise Maori not to fight for New Zealand again. And yes, it was one of those issues that was talked through and eventually laid to rest as I'm sure this one will be.

I see the great continuities in New Zealand history as being decency and common sense and up until now when we've confronted these things we've been able to talk them through, and I'm sure we will with this issue as well.

You can see that all the more clearly if you put this in a slightly broader context. Sir Tipene O'Regan laments what he sees in New Zealandrs as a failure of imagination and a 'total absence of willingness to invest.'

You're never held to account for squandered opportunity. You do get held to account over parking tickets. And underwear. There's whole lot of things that you can't afford to do in this society. But neither can you afford not to do them. The great problem for Maori is that they're too much like New Zealanders. They don't take those great leaps unless they're in an absolutely desperate situation.

Perhaps it's time for a little more imagination and a bit more vision. And perhaps it's time for us all to be little more sober, and a little more considered. When you look back over the story we've covered, you see a pretty clear pattern. People fret about things that might happen, and they assume the worst. And yet that dark day never actually dawns. Much of the anxiety comes from fevered imaginings, rather than informed thought.

As I write this, we're seeing the same thing again. The sovereignty flags have been flying outside Parliament, and the war of words is being waged once more. At a moment like this, you can begin to wonder all over again if this could be a problem that's just too hard. But it's not. With only a fraction of the difficulty that many nations have encountered, we have been slowly and steadily finding a way to right a wrong and get move on. We've made enormous gains. It's no time to quit.