Choices, Choices, Choices: Abandoning the Kermadec Ocean Sanctuary would inflame the already raw feelings of National Party’s more conservative supporters. Not because they are the world’s most strident environmentalists, but because they would interpret Key’s “surrender” as proof that the Treaty of Waitangi now constituted “superior law” – i.e. capable of preventing the Crown from over-riding its provisions.
JOHN KEY’S OPTIONS in relation to the Kermadec Ocean Sanctuary are many and varied. He could step away from the enabling legislation, postponing its final resolution until he’s safely re-elected. He could drive the legislation through Parliament with the support of the Greens and NZ First. He could waft a cheque in front of the noses of Te Ohu Kaimoana (TOKM) and watch their “non-negotiable” position melt into air. Or, he could simply abandon the Sanctuary altogether.
The latter option would be a gift to the Greens, NZ First and (to a lesser degree) Labour. James Shaw and Metiria Turei would characterise Key’s decision as a betrayal of New Zealand’s international commitment to protect at least 10 percent of its Exclusive Economic Zone from commercial exploitation. Winston Peters would condemn Key for surrendering in the most abject fashion to the Iwi interests behind TOKM. Labour, sensitive to its exposed position in the Maori seats, would attempt to persuade voters that National lacked both the will and the skill to negotiate a fair settlement of the Sanctuary dispute.
Abandoning the Sanctuary would also inflame the already raw feelings of National Party’s more conservative supporters. Not because they are the world’s most strident environmentalists, but because they would interpret Key’s “surrender” as proof that the Treaty of Waitangi now constituted “superior law” – i.e. capable of preventing the Crown from over-riding its provisions.
Quite rightly, this would be viewed as a radical recasting of New Zealand’s unwritten constitution. Rather than ultimate sovereignty being vested in the “Crown in Parliament”, as is presently the case, Key’s back down would be taken as proof that ultimate sovereignty now resided in the Treaty of Waitangi – as interpreted by the unelected judges of the New Zealand Judiciary.
Right-wing intellectuals, including such outspoken critics of the Treaty as Don Brash, Hugh Barr and David Round, would go further. Their question would be: What persuaded John Key to undertake such a radical recasting of New Zealand’s constitutional arrangements? Their answer, in all probability, would be that the Prime Minister was convinced that anything less was bound to provoke an unquellable Maori backlash.
Were this to become generally understood by the Pakeha electorate, an unquellable Maori backlash would instantly be relegated to the second biggest problem Key had to face. The extraordinary response to the then National Party leader, Don Brash’s, speech to the Orewa Rotary Club in January 2004 (National’s poll-rating surged 17 percentage points) still stands as the most telling evidence of latent Pakeha hostility towards the Treaty-based “Maori Renaissance”. Indeed, it is arguable that National’s easy dominance of twenty-first century New Zealand politics is traceable to Brash’s in/famous “Orewa Speech”.
Elite opinion in New Zealand airily dismisses the potential for a devastating Pakeha backlash. On this matter Sir Geoffrey Palmer, the politician most responsible for bringing the Treaty back from the dead in the 1980s, is unequivocal. In a speech to the Māori Law Review symposium on the Treaty of Waitangi and the constitution, held on 12 June 2013, Sir Geoffrey stated bluntly that:
“Insulation from the ravages of extreme opinion has been achieved. The settlements have become mainstream. We have travelled a long distance with the Treaty, and much of what was proposed by making the Treaty part of an entrenched Bill of Rights has been achieved. Yet the current position with the Treaty does not seem to me to be sustainable long term. It is half in and half out of the legal system. From a constitutional point of view the developments have been significant, because in many situations the courts are empowered to rule on treaty issues as to whether requirements have been met. The courts are better protectors of “discrete and insular minorities” than the majoritarian legislature, even under MMP.”
It is unclear if Sir Geoffrey is linking the democratically elected Parliament of New Zealand with “the ravages of extreme opinion”. What is very clear, however, is that the posture of New Zealand’s political elites has more than a little in common with the posture of the British elites in the run-up to the Brexit referendum. They, too, believed they were defending a “mainstream” position.
A failure to appreciate just how deeply Pakeha hostility to “Treaty issues” is imbedded in provincial electorates is what drove the liberal Mayor of New Plymouth from office. Perhaps Key should ponder Andrew Judd’s fate before goading his supporters into a similar electoral rejection.
Then again, this Prime Minister is almost certainly also pondering the likely electoral consequences of tapping into, rather than over-riding, anti-Maori prejudice. The likelihood of National emerging the loser from a “Kiwi versus Iwi” themed snap-election is not high.
That is the option TOKM should consider most carefully before reiterating its “non-negotiable” stance on the Kermadec Ocean Sanctuary. Some fish are best left uncaught.
This essay was originally published in The Press of Tuesday, 20 September 2016.