Wednesday 17 May 2023

Secretive Constitutional Reform Is Political Kryptonite.

Dangerous Stuff: The moment it becomes clear to non-Māori New Zealanders just how violently Te Pāti Māori’s reforms would re-arrange the country’s constitutional furniture their reaction is likely to sink any chance of a centre-left victory. Unsurprisingly, perhaps, talk of serious constitutional reform has the effect of Kryptonite on most New Zealand politicians.

CONSTITUTIONAL REFORM is Kryptonite to our political leaders. New Zealand’s No. 8 wire constitution, largely unwritten and characteristically informal, has been deemed “rough enough” by the country’s two largest political parties. In both National and Labour, excessive interest in the topic is not career-enhancing – being taken as evidence of the political trainspotting to which most “ordinary” Kiwis are violently allergic.

This allergy has only gotten worse as the political salience of Te Tiriti o Waitangi has increased. The alacrity and energy with which National and Labour politicians kick Tiriti-based constitutional reform down the road is remarkable. That republican proposals regarding the monarchy are similarly postponed to some nebulous future time, merely confirms our politicians’ aversion to serious constitutional debate.

The politicians’ aversion to substantive constitutional reform is perfectly understandable when set against the New Zealand electorate’s strongly-held conviction that Parliament is – and should remain – supreme. Formalising our constitutional arrangements in writing would lead, inexorably, to the Judiciary adjudicating constitutional disputes. The idea of appointed judges having the final say over the actions of our democratically-elected House of Representatives has never gone down well in these parts.

Like it or not, however, the pressure to enshrine Te Tiriti at the heart of our constitutional structures continues to grow. “What to do about ‘The Treaty’?” is certain to be one of the key questions dominating the forthcoming election campaign. This is not because our political leaders have finally decided to bite the bullet on constitutional reform, it’s because Māori activists – both legal and political – have finally forced the issue onto New Zealand’s short-term political agenda.

Both of the major parties have been caught in a pincer-movement. From the left, Te Pāti Māori (TPM) has made it clear that constitutional reform must be part of any coalition and/or support agreement involving itself, Labour and the Greens. From the right, the Act Party is insisting that any conservative coalition government must commit itself to, first, defining te Tiriti’s meaning and scope, and then, confirming that definition by referendum.

The moment it becomes clear to non-Māori New Zealanders just how violently TPM’s reforms would re-arrange the country’s constitutional furniture their reaction is likely to sink any chance of a centre-left victory. By the same token, an affirmative referendum vote for a re-definition reducing Te Tiriti to a mere constitutional flourish would unleash racial conflict on a scale not seen since the land wars of the 1860s.

Presumably, it was thoughts of this sort that prompted the Prime Minister, Chris Hipkins, to warn New Zealand’s minor parties against announcing bottom-lines that neither Labour nor National can accept without setting themselves up for a fatal electoral backlash. Hipkins’ (along with the Opposition Leader, Christopher Luxon’s) problem is that neither TPM nor Act can afford to be seen abandoning their principles for the baubles of office. Both parties’ electoral strength has been built upon their very public determination to stand firm even when all those around them are bowing to “mainstream” pressures.

The uncompromising positions adopted by those parties operating beyond the pale of political orthodoxy are what you get when orthodox politicians’ refuse to both sanction and participate in genuine constitutional debate. But if, by their refusal, those same orthodox politicians believe that serious constitutional debate can be stifled indefinitely, then they are wrong. If the non-Māori political establishment was unwilling to countenance constitutional reform, the Māori political establishment – in the guise of the Iwi Leaders Forum – were determined to set the wheels in motion.

It was in 2010, at a meeting of the Iwi Chairs’ Forum, that a proposal for Matike Mai Aotearoa, the Independent Working Group on Constitutional Transformation, was first laid upon the table. By 2012, Matike Mai, led by Margaret Mutu and the late Moana Jackson, was ready to begin developing and implementing “a model for an inclusive Constitution for Aotearoa based on tikanga and kawa, He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835, Te Tiriti o Waitangi of 1840, and other indigenous human rights instruments which enjoy a wide degree of international recognition.”

For more than four years, up and down New Zealand, Māori gathered to impart their ideas about constitutional transformation to Matike Mai. For the most part, Non-Māori New Zealanders remained unaware that such a process was underway. Certainly, only a very small number of Non-Māori understood the radical character of the undertaking. In the words of the Working Group’s final report:

The Terms of Reference did not ask the Working Group to consider such questions as ‘How might the Treaty fit within the current Westminster constitutional system’ but rather required it to seek advice on a different type of constitutionalism that is based upon He Whakaputanga and Te Tiriti. For that reason this Report uses the term ‘constitutional transformation’ rather than ‘constitutional change’.

Mutu and Jackson clearly considered this approach to be optimal, but, from the perspective of those seeking constitutional reform proposals with significant buy-in from Māori and Non-Māori alike, Matike Mai was emphatically sub-optimal. Its recommendations, untested by the responses of Non-Māori, could hardly avoid becoming political Kryptonite. The moment the Non-Māori population became aware of what Matike Mai was proposing, things were going to get extremely messy.

The change of Government in 2017 hardly improved matters. Now vested with all the powers of the Executive, Labour’s Māori ministers opted to continue down the constitutional reform path unaccompanied by the Non-Maori Treaty partner. Commissioned by Nanaia Mahuta, the extraordinary He Puapua Report (kept under wraps until the 2020 general election was safely out of the way) rehearsed many of the radical constitutional ideas first mooted in Matike Mai. When, inevitably, the contents of He Puapua was leaked to the public, Jacinda Ardern and her Non-Māori colleagues could not back away from it fast enough.

And, as if Matike Mai and He Puapua weren’t enough, there was also a constitutional consultative process of extraordinary design moving inexorably towards its scheduled conclusion. This exercise was notable for its division into two separate stages.

The first stage was restricted to Māori. Only when their recommendations had been finalised would Non-Māori be asked to respond. Perhaps unsurprisingly, when Māori Development Minister Willie Jackson received the Māori-generated constitutional proposals he refused to put them before Cabinet. He then (wisely) decided to halt the entire exercise until after the election.

In the light of this extraordinary history, it is very difficult to avoid the conclusion that those charged with managing the discussion of New Zealand’s future constitutional arrangements have been guilty of appalling cowardice. Rather than insist that any and all discussion of the nation’s constitutional future takes place in the full view of its citizens, the representatives of both Treaty partners found it more expedient to do their talking separately and behind closed doors. Inevitably, this secretive process has given rise to profound misgivings, especially among the Non-Māori majority. The Labour Government’s shameful lack of transparency has allowed fear and doubt to grow about the motives and intentions of the Māori minority. This has contributed to an unnecessary and distressing deterioration in New Zealand’s race relations.

To prevent matters deteriorating further, Labour and National should both undertake to defer any significant constitutional change until there has been a opportunity for all New Zealanders – Māori and Non-Māori – to engage openly, and without fear of “cancellation”, in discussing and debating the full range of options for how their country might be governed. It is not in the least reasonable to assume that a durable constitution can be drafted in the absence of untrammelled popular participation.

Political Kryptonite can only be rendered harmless by exposing it to the remedial effects of direct democratic sunlight.

This essay was originally posted on the website on Monday, 15 May 2023.


Trev1 said...

It's deeply ironic that radical Maori cling to the Treaty which is a relic of colonialism, and which was superseded by self government in 1852. Disregarding the fake claim of partnership (the Crown does not partner with its subjects as equals), the Treaty regards Maori more or less as inhabitants of a protectorate much as Bechuanaland once was.The Treaty is not a template for the future but an anachronism from a fleeting moment in the country's history which has long since passed.

Anonymous said...

Perhaps we should rip up the Treaty and start again making sure that everyone is in the room. We built this country together and any misappropriation of our assets would be fraud or theft.
Make sure that banks and corporations are having nothing to do with it. That's all corporations not just colonial ones. And a mixed-race farmer should be the chairman of the committee. Just because farmers count.

Jason Barrier said...

Chris - I totally agree on the cowardice bit. If we are going to move forward as a country e need open transparent robust debate on this issue, not elitism skulking behind closed doors. Are you making the assumption that rank and file Maori would fall in behind the elites if a referendum on the Treaty meaning took place? I am not so sure. The academic radicals and elite who write this trouble, treat ordinary Maori like Labour treats the working classes -dismissively - in the words of a UK union man (whose name I cannot remember) - "like an embarrassing elderly relative". So I am not sure that this debate would necessarily play out along strictly ethnic lines? More along class lines with the chattering classes for constitutional reform and the working classes against it. Perhaps I am wrong - but bring on the referendum - so we can all have our say.

David George said...

"The Labour Government’s shameful lack of transparency has allowed fear and doubt to grow about the motives and intentions of the Māori minority"

"lack of transparency"? They straight out lie to us in the furtherance of their agenda:

"The Minister’s on-going claim that a tsunami of 34,000 people get sick each and every year from drinking contaminated council water, is a complete and utter fabrication. It is not based on current health data but on an ESR report estimating the incidence of waterborne gastro-intestinal disease in New Zealand that was prepared for Helen Clark’s Labour Government in 2006!

The 34,000 figure was the upper band of a ‘guestimate’ based on UK statistics because the incidence of disease in New Zealand was insufficient for modelling purposes: “the size of most outbreaks is small, averaging nine cases per outbreak in 2000-2004, and is smaller than any other countries for which data are available.” The author even highlighted the unreliability of his estimates by noting in the report: “The reliability of this method is questioned by the author.”

Apart from one tragic accident in 2016, when farm runoff entered a town water supply during a storm, New Zealand’s freshwater quality has been amongst the highest in the world."

David George said...

We're going to have to confront the issue sooner or later; sooner is better.
So much has come to the surface since the deeply destabilising He Puapua report that kicking the can down the road is no longer an option. ACT's proposal for a referendum is sound, it's really a simple, but profound, binary choice: do we give race permanent political and legal status or not.

I am Pononga said...

The complex historical context of New Zealand, including the extension of the British Slavery Abolition Act of 1833 to New Zealand in 1840 and the signing of the Treaty of Waitangi just days later, significantly impacted the nation's social fabric. These events effectively abolished slavery and made all inhabitants of the land British subjects, theoretically equal under the law.

However, it's essential to acknowledge that the lived experiences of people in New Zealand aren't adequately represented by a binary understanding of identity as either Māori or non-Māori. This binary conception oversimplifies the multifaceted and diverse experiences of individuals and communities, and doesn't consider the large number of freed slaves, estimated by William Yates in 1836 to constitute 50% of people in the North Island.

Following the abolition of slavery, it's plausible that many of these freed individuals may have chosen to embrace their status as free British subjects, rejecting their previous status as slaves of iwi elites. Their experiences and choices further challenge the binary understanding of identity, highlighting the need for a more nuanced understanding of identity in New Zealand.

Furthermore, the forced cultural practices implemented by iwi elites both facilitated and perpetuated enslavement, often making it extremely difficult, if not impossible, for enslaved individuals to return to their own iwi. They were often left in a liminal space, rejected by both their own and the enslaving iwi.

Continuing to categorise people within this binary framework of Māori and non-Māori overlooks these complexities and may inadvertently marginalise those whose experiences do not align neatly with either category. It also fails to fully acknowledge the painful history and suffering inflicted by iwi elites, thus perpetuating historical erasures.

Brendan McNeill said...


I fear we are no longer operating in a political environment where we can engage in a 'contest of ideas'. We have been reduced to a 'will to power'.

I agree that your proposal makes perfect sense, but we are beyond that now.

John Hurley said...

I wrote to Dr Paul Moon asking his thoughts on this:
Bullshit, Backlash, and Bleeding Hearts. By David Slack:
Time for some expert help here. The first lecturer I had at law school who taught our class anything Treaty-related was Alex Frame. [ ….]
People sometimes ask me, ‘How do I see the Treaty. How should we think of the Treaty?’ I’ve always said that the first article of the Treaty – the kawanatanga part – is very strong – much stronger than some Maori are prepared to concede, and the second article, which guarantees rangatiratanga is also very strong – much stronger than many Pakeha are prepared to concede. So how can we have these two strong articles sitting there? I’m tempted sometimes by this idea. In a way both sides gambled. The Crown gambled. Why was it prepared to sign up to Article II? Well, in a sense the Crown gambled that there would be assimilation. And therefore if there was assimilation, as you will see. Article II would become increasingly unimportant. On the other hand, Maori gambled. After all, why did Maori sign up for Article I – and by the way, don’t go for these readings that say Article I was only giving the Queen power over Pakeha. The most elementary reading of the Maori version of the first article shows that that is completely untenable. It gives the Queen te Kawanatanga katoa – all – of the kawanatanga; o ratou wenua – of their lands. Now, which lands is that? That’s the lands of the chiefs. That’s all it can be -have a look at the structure and I challenge anyone to show me an even faintly tenable reading which can dispute that it’s all the territory of New Zealand.
So why did Maori sign up to that? Well, I think they gambled. I think they gambled that the as they were in 1840, but would stay approximately such that there would be a preponderance of Maori and that the newcomers would be relatively few. I know there is a reference in the preamble to others coming, but I think the gamble was that if the demographics stayed favourable to Maori then this kawanatanga thing would be a really abstract sort of notion in the background.

Professor Moon was skeptical as he said there was reference to other people coming
However I was looking for a word for something and I discovered it recently: it is normalcy bias

larry said...


"It is not in the least reasonable to assume that a durable constitution can be drafted in the absence of untrammelled popular participation"

Should that not be ... "that a durable constitution CANNOT !!! be drafted in the absence of untrammelled popular participation".

After all when I last looked ... we run a democracy down here ... ehh?

Chris Trotter said...

To: Larry@5:39

No, Larry, read the sentence again.

I am saying that drafting a constitution without extensive public consultation and participation is an entirely unreasonable proposition.

As you say, it CANNOT be done without it, because the voters won't stand for it.

David George said...

There is a huge question mark over we can even hold a genuine discussion on these issues anymore. As the window of what you can say, and who you can say it about, the orthodoxy becomes all conquering. Totalitarian.

"the greatest enemies of freedom of thought and expression are to be found among the very people one might have hoped were fiercest in defense of it. On the pretext of protecting eggshell sensitivities, they want to prevent discussion of contentious matters and enforce their own views as an unassailable orthodoxy. I suspect (though I cannot prove) that this is because, at some level of what one must call their minds, they are only too aware that their views and careers are built on a foundation of shifting sands."
Theodore Dalrympal

Vince McLeod said...

I suspect that the New Zealand people would rather that they were supreme, instead of the NZ Parliament, but no-one ever asked us.

sumsuch said...

You were the earliest on the Left to make the case, despite the up-current rapids.

Maori need important input but not ...

Phil Saxby said...

Is "cowardice" the the right word, here? No doubt the Maori side insisted on holding separate, prior discussions to reach its conclusions *without* an accompanying media frenzy. No doubt the Labour leadership agreed that any such media frenzy would not only wreck the separate discussions, it would also poison the ground and deeply split Labour voters, the Labour Party and the public in general.

There is nothing unusual about reaching strategic decisions in private. In fact, it's quite normal for organizations (both commercial and non-profit) to do this. The time for full public discussion comes *after* internal agreement has been reached and spokespersons appointed to present the case for change.

Phil Saxby said...

Parliament is effectively sovereign and since our Parliament is directly elected by the (adult) people , it follows that the people are supreme.

The people are sovereign, already.