No Ordinary Bill

Liberty Leading The People: The principle of equality has long been regarded as indispensible to the achievement of liberty. The Marine & Coastal Areas Bill, by establishing the new property right of "Customary Title", will enshrine in law a power that only Maori may exercise. By negating the principle of equality in this way, the National Government threatens the freedom of all New Zealanders.

THE GOVERNMENT’S DECISION to rush through the remaining stages of the Marine & Coastal Area Bill is as ill-considered as it is dangerous. For this is no ordinary piece of legislation, easily repealed by a newly-elected House of Representatives. It is a bill which confers upon Maori, by virtue of their indigeneity, a new kind of property right (Customary Title), along with a powerful new set of legal powers to enforce that right – powers which the legislation’s many critics believe will undermine the generally accepted principles of liberal democracy.

The formal equality of all citizens lies at the heart of the liberal-democratic state. Indeed, any state which invests one part of the population with more rights than another, or strips a minority of citizens of rights enjoyed by their neighbours, is quite rightly condemned for promoting inequality.

The historical path towards full political equality has been anything but smooth. Revolutions and civil wars have been fought to secure its full recognition.

The right to elect a government, for example, was originally restricted to high-status men of property. And even when the property qualification was abolished, women remained excluded from the franchise. In most colonial societies the indigenous population was denied any role at all in government.

The key point to acknowledge here is that, from the 18th to the 21st Century, the expansion of human rights has been a genuine progression: from privilege and exclusion – to equality and increasing participation.

Our own founding document, the Treaty of Waitangi, reflects the logic of this progression. The absorption of New Zealand into the British Empire (Article One) is followed by a clear description of how the transition (from tribal society to modern state) is to be managed (Article Two). The document is then concluded by the granting of formal equality to all of Queen Victoria’s new subjects (Article Three). By the standards of the time, this was an extraordinarily generous arrangement – a triumph of missionary zeal and the British Foreign and Colonial Office’s liberal optimism.

Until relatively recently, that liberal optimism did not appear to have been misplaced. Through much travail, and many injustices, the transition of the Maori people – from pre-modern tribalism to full citizenship in a modern state – seemed on the point of fulfilment.

In the 1970s, however, New Zealand intellectuals’ faith in this progressive vision faltered. The reality of economic inequality, coupled with the persistence and institutionalisation of racial prejudice, undermined their confidence in the assimilationist policies of successive New Zealand Governments. Maori intellectuals, in particular, rejected the liberal-democratic assumptions upon which assimilation was based. Maori, they insisted, possessed an indissoluble and separate identity, which could only be protected in and by Maori-controlled institutions. Article Two of the Treaty – which guaranteed tino rangatiratanga – was not a formula for transition, but a charter for the permanent preservation of tribal power and independence.

The extraordinary fact of the past forty years of our history is the manner in which this bold rejection of Captain Hobson’s famous declaration of 6 February 1840: he iwi ko tahi tatou (now we are one people) has become the official policy of the New Zealand State.

Not, I hasten to add, the policy of the New Zealand people – who have never been given the opportunity to formally endorse – or reject – the separatist "two nations in one state" orthodoxy which now prevails in our universities and throughout the public service. Though these latter groups celebrate "The Treaty Debate", the term is cruelly inappropriate. The only issue up for debate among New Zealand’s elite policy-makers is the speed at which our liberal-democratic institutions should be "adapted" to the new bi-cultural orthodoxy.

The Minister for Treaty Negotiations, Chris Finlayson, has unabashedly located himself alongside the Maori Party at the sharp end of this sham debate. His airy sanctioning of the abrupt curtailment of the Maori Select Committee’s consideration of the Marine & Coastal Areas Bill made a nonsense of his Government’s earlier promises of democratic accountability.

The overwhelming majority of submitters opposed the legislation (a situation which the Prime Minister, John Key, had previously reassured the electorate would cause the bill to be withdrawn). No matter. Mr Finlayson, like the leader-writer of The NZ Herald, clearly holds the view that there must be "a gradual acceptance that a post-colonial state cannot be governed simply by majority rule".

There’s simply no way Mr Finlayson and his Maori Party allies are about to let a few "clowns" prevent them from exploiting a wavering and wafer-thin majority in the House of Representatives to pass a piece of legislation inimical to the democratic beliefs – and rights – of all New Zealanders.

Dissatisfied Maori nationalists in Tamaki Makaurau are organising a hikoi of protest from the north against Mr Finlayson’s bill. Perhaps dissatisfied Pakeha democrats in the south should do the same?

This essay was originally published in The Press of Tuesday, 15 February 2011.