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A Brash Approach to the Treaty

Kim Workman

For thousands of Pakeha New Zealanders Dr Don Brash's Orewa speech seemed to provide simple, clear answers to issues which have received a great deal of media attention, have worried New Zealanders for a long time and which, in some cases, seemed to have the potential to interfere with their private and personal lives, and impose an unfair tax burden. In the first few minutes of his speech, Dr Brash talked of his vision for a single nation state.

For thousands of Pakeha New Zealanders Dr Don Brash’s Orewa speech seemed to provide simple, clear answers to issues which have received a great deal of media attention, have worried New Zealanders for a long time and which, in some cases, seemed to have the potential to interfere with their private and personal lives, and impose an unfair tax burden. Kim Workman considers some of the implications of the Orewa speech.

We must build a modern, prosperous, democratic nation based on one rule for all in a single nation state. We cannot allow the loose threads of 19th century law and custom to unravel our attempts at nation-building in the 21st century.

Dr Brash needs reminding, however, that a democratic nation derives its power from the 'consent of the governed'. On 4 July 1776, the American Congress of 13 British colonies signed one of the most important documents of that century -- The Declaration of Independence -- ending the right of England's King George III to rule the 13 colonies. Instead, it proclaimed that governments derive their just powers from the consent of the governed.

Getting the consent of the governed

The 'consent of the governed' is still at the core of what we understand today by democracy. When politicians like Dr Brash speak of building a modern democratic society, they draw on ideals of self-determination and nationhood that continue to inspire political movements all around the world.

When Captain William Hobson was sent from New South Wales to oversee the colonisation of New Zealand he could not simply declare a British colony, since the country had already been declared an independent state in 1835. Instead, he needed to have the 'consent of the governed' -- specifically he needed the consent of the Maori tribes. And so the North Island chiefs were called to meet with Hobson, and the Treaty of Waitangi was signed on 6 February 1840.

The Treaty comprises three articles. In the first, complete government was given to the English Crown. In the second and third, Maori property and citizenship rights were guaranteed.

As Dr Brash said in his speech to the Orewa Rotary, the Treaty was the launching pad for the creation of one sovereign nation. What he didn't say was that there could have been no Treaty without the explicit Crown guarantees in its second and third articles. Those guarantees are very clear.

In the Maori text, the Queen of England agreed to protect the chiefs, the sub-tribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures, and to give them the same rights and duties of citizenship as the people of England.

The English text is more detailed. Article 2 confirmed and guaranteed to the chiefs and tribes of New Zealand, and to their respective families and individuals, the full exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties. Article 3 imparted all the rights and privileges of British subjects.

Thus the guarantees of Maori property and citizenship rights are as much part of the founding of our nation as was the acceptance by Maori of government by the English Crown. That is why, both then and now, the honour of the Crown depends on fulfilling its obligation to protect Maori property and civil rights.

While Dr Brash may not have a solid grasp of our nation's history, he is an outstanding economist. Economists have always recognised that well-defined rights are essential for economic development. With or without the Treaty, it is a core function of government to protect its citizens' property rights and civil rights. Why was Dr Brash silent on that issue?

The spirit of the Treaty

Dr Brash then proceeds to give us a lesson in te reo Maori. To his credit he makes the same mistake that has been made by successive generations, in stating that the 'spirit' of the Treaty of Waitangi was summed up by Hobson in February 1840 when, in his "halting Maori", he said to each chief as he signed: "He iwi tahi tatou" -- "We are one people".

But that is not what Hobson said. In 1840, Hobson's phrase correctly translated would have meant: "We two peoples together make a nation".

This correct translation tells us much about the true spirit of the Treaty.

Righting the wrongs

The Orewa speech continued with a 'spin' on our shared history, briefly acknowledging injustices to Maori by the Crown, but blaming Maori separation from their land during the Land Wars on "deficient leadership by some Maori". In two pages of his speech Dr Brash outlines the advantages the Maori nation have accumulated over the last 170 years, without addressing the wholesale unlawful confiscation of land, and systemic legislative and institutional discrimination against Maori.

Why gloss over the injustices of the past with comments like this?

None of us was around at the time of the New Zealand wars. None of us had anything to do with the confiscations. There is a limit to how much any generation can apologise for the sins of its great grandparents.

Most New Zealanders have no idea about how the past unfairness has affected generation upon generation of Maori. We need to have that conversation. Very few Pakeha know what it feels like to walk on land that was once the property of our tipuna, and was then taken unlawfully by the Crown. We need to have that conversation.

Even fewer Maori know what it feels like to have the descendants of those Pakeha seek forgiveness for the crimes and injustice of the past. How many of us have had the opportunity to heal past injustices in a personal and real way, to forgive and reconcile our wounded history? We need to have that conversation. Only then can we move forward as "two peoples together making a nation".

The Treaty grievance industry

The Treaty of Waitangi settlement process is a judicial mechanism for hearing both sides of these disputes. It is not special treatment for Maori, but represents a way of addressing acknowledged historical injustices and restoring the honour of the Crown. Yet, instead of a property rights dispute with the Crown, Dr Brash portrays it as a race conflict between Maori and other New Zealanders. It is a process, he said, "where people who weren't alive in the 19th century pay compensation to the part-descendants of those who were".

This is irresponsible language from such a senior servant of the Crown. It is false in every important sense. It is the Crown, not New Zealanders, being called to account. Redress is being paid from assets of the Crown that were unjustly confiscated from their Maori owners, not from taxes paid by New Zealanders.

In other words, the Waitangi settlement process is simply returning to Maori tribes their own assets (or some agreed alternative) previously stolen by the Crown. All New Zealanders who believe that private property rights should be respected by the government will applaud this process.

But Dr Brash dismisses the Treaty grievance process (or 'industry' as he prefers to call it) as "an attempt to acknowledge past injustice, and to make a gesture at recompense . . . . It can be no more than that."

Nobody asks the question, "Why can't the Treaty process be the start of a truth and reconciliation process between Maori and the Crown?"

Needs versus ethnicity

Don Brash then weaves some more mythical magic, claiming that in both education and healthcare, government funding is now influenced not just by need -- as it should be -- but also by the ethnicity of the recipient. The 'need versus race' description has the potential to divide those who should benefit from those who should not benefit, and makes it morally permissible to attack the undeserving as benefiting when they shouldn't.

What Dr Brash failed to point out is the huge difference between Maori and non-Maori health. Maori, for example, have twice as much heart failure as non-Maori and receive less than half as much lifesaving attention (such as hospital treatment and emergency interventions). Maori males do not on average live long enough to collect their superannuation and the trend is worsening in contrast to non-Maori for whom long life is increasing.

He also declined to acknowledge that the improvements that are occurring have happened because Maori health providers have been encouraged to deliver their own care in ways most appropriate to Maori. As an economist he would know that that makes fiscal common sense.

Money, money, money

Dr Brash infers that Maori see the grievance process as a 'honey pot', claiming that "for 20 years now, mischievous minds have been interpreting the document in ways that they envisage will suit their financial purposes."

Let's look at the facts. The size of the fiscal envelope available to settle these claims has been set by the government at $1 billion. Although this is a substantial amount, reflecting the gravity of the original injustice, it is well below the true value of the disputed lands. It is also affordable, given that the Crown's total assets are 100 times this amount.

To date, the total Treaty settlement since 1989 has cost the Crown around $596 million. Compare this with Telecom's net profit of $709 million for the year ending June 2003!

What is the real cost to the taxpayer? In the past five years, the Government has spent $227 billion. In that time, Treaty settlements totalled $248 million, or 0.109% of total spending. If you paid $100,000 in tax in the last five years, your contribution to Treaty settlements was $109. That is what Dr Brash chose not to say.

Don Brash is an economist. He knows there is nothing unusual about any of this. Property rights disputes involving the Crown occur from time to time. If we accept one law for all, then any individual or organisation with a property rights grievance against the Crown should be entitled to proper judicial process. Why does he want to treat Maori differently?

It would indeed be tragic if New Zealanders came to accept a lower standard for the Crown's historical and contemporary dealings with Maori tribes. This would be exactly the kind of dishonourable behaviour that created the land grievances in the first place.

Special rights for Maori

A second theme in Dr Brash's speech is that the Treaty is being used as a basis for creating greater civil, political or democratic rights for Maori than for other New Zealanders. Again this charge is highly misleading.

During the 1980s a number of reports examined the policies and work practices of New Zealand government agencies. Almost without exception the reports found an unconscious but strong monocultural bias in the way the agencies delivered their services to citizens.

At one level it could be argued there was no discrimination because all citizens had access to the same services. At a deeper level, however, strongly monocultural services produce what has come to be called 'institutional racism'. Even without the Treaty, institutional racism is very disturbing.

If Maori are to participate fully in creating a prosperous, vibrant New Zealand, then the public institutions of central and local government must be reformed to remove any monocultural bias. This does not create separatism, rather it is a case of equal rights for all citizens. In the area of local government representation, for example, Maori currently hold 4% of local body seats, while making up 15% of the population.

Article 3 of the Treaty of Waitangi has been very helpful in this process. Its guarantee of "the same rights and duties of citizenship" records Maori entitlement to help design public services that reflect Maori culture and aspirations, not just the culture and aspirations of the dominant European population.

Once more, this situation is hardly unusual. Many democracies around the world recognise the need for public policy to respect cultural diversity in their populations while still focusing on building a single nation. Constitutional safeguards similar to the Treaty of Waitangi guarantees are not uncommon.

Public policy to incorporate cultural difference does not imply separatism, special treatment of minorities, or dominance by one group over another. Here and overseas it is part of the way democratic governments derive their just powers from 'the consent of the governed'.

Far from being separatist, everything that the government, whether Labour or National, has done has been to level off the playing field for Maori so that they can participate equally in the life of the nation. Dr Brash would abolish the Maori Television Service, the Maori Language Commission, the Ministry of Maori Development and Maori representation in Parliament. This is cultural genocide.

Maori or melting pot?

Whilst Dr Brash talks about a dangerous "drift towards racial separatism", the opposite is in fact the case. As early as 1960 an anthropologist found that as many as 50 percent of the marriages contracted by Maori were cross-cultural. I count among my mokopuna Irish Catholic, Greek Orthodox, Lebanese Muslim, and an import from Tainui.

Dr Brash went on to say, "There is no homogenous, distinct Maori population -- Our definition of ethnicity is now a matter of subjective self-definition: if you are part Maori and want to identify as Maori you can do so." What he didn't say is that all people groups in this country are equally entitled to define themselves ethnically in whatever way they choose. Dr Brash's colleague Clem Simich has always defined himself as a New Zealander until recently, when he was outed by Dr Brash as "our Maori MP".

The Real Impact

What will be the real impact of Dr Brash's speech? In reality, he has promised very little. Maori parliamentary seats will go. What he calls "racially based" scholarships will go -- of which only a minute number are under government control. References to the Treaty will only go if they are not relevant to the legislation -- in reality most will stay.

Pakeha New Zealand will be stuck with the Treaty process, and the key Maori mechanisms for delivering health and education. They will come to the view that National has not delivered on its promises -- even though it did not make any.

In the meantime, the Maori share of the total population will increase from 15 percent three years ago to 17 percent by 2021. The Pacific population will increase by two thirds over that timeframe, and our Asian population will likely more than double. In comparison, due to lower fertility rates, migration and an older age structure, New Zealand's European population will remain virtually static over the same timeframe.

The colours of the tapestry that is New Zealand are changing, in both composition and intensity. It is important that we recognise and acknowledge these changes. This is our country, this is who we are, and this is how we will go forward as a nation. We cannot -- nor should we want to -- stop time. Instead, we should celebrate the unique composition of our population, and the fact that our nation continues to grow, prosper and daily become more exciting and colourful.

An Old Approach to the Treaty

How then, should we regard the Treaty? I suggest in the same way that our tipuna did -- as a Covenant. Maori adopted the word 'Kawenata' into their vocabulary after meeting it in their study of the Bible, in Maori translations that became available from about 1826. In the Maori Bible, the titles for the Old and New Testaments are Te Kawenata Tawhito and Te Kawenata Hou: The Old Covenant and the New Covenant.

It is not difficult, then, to understand why Maori in those days referred to the Treaty of Waitangi as Te Kawenata -- The Covenant. Our Christian forefathers, the missionaries, played a prominent part in the early years of contact between Maori and Pakeha.

Our tipuna saw the Treaty of Waitangi as a covenant -- an agreement between Maori Rangatira acting on behalf of their people and Queen Victoria acting on behalf of her British subjects, with God as witness.

Based on Biblical covenant, the Treaty of Waitangi:

1) institutes a relationship based not on law but on love -- a relationship in which there is no place for selfishness, conditions or competition.

2) involved obligations freely accepted -- obligations to respect and trust each other and to share all God's gifts, including land, knowledge and power.

3) is a continuing covenant, which is passed on from generation to generation and remains in force in spite of our failure to live up to its provisions.

From a Maori Christian perspective, it was God's representatives, the missionaries, who facilitated the process by suggesting a treaty be the basis on which the Crown could come to an agreement with Maori to utilise the country's resources for each other's benefits. They wrote up the Treaty in consultation with Maori and Pakeha, and sought support for the Treaty.

Lord Bledisloe in his Waitangi Day speech in 1934 prayed that: "God grant that the sacred compact then made on these waters may be faithfully and honourably kept for all time to come".

A covenant in the biblical sense requires us to make a strong and unyielding commitment, and to forsake our individual and independent views and opinions. Through a covenant, two became one.1

e participate in a society that has since committed injustice, and we share in God's judgement of that society. God passed judgement on Israel when it failed to honour the covenants and treaties it made with nations.2 And so he will pass judgement on this nation.

Any public policy development needs to honour the covenant made in 1840, and any subsequent covenant made freely between two or more peoples, in the presence of God. In my view, the Treaty of Waitangi need not be the subject of dissension and controversy, rather it has the potential to provide a basis for unity. It is currently acknowledged by Government to be the "founding document of New Zealand" -- it has the potential to be the "foundation" document of New Zealand.