Visitors With Votes.

The Way We Were - And Hoped To Remain: The iconic photograph of Prime Minister Norman Kirk holding the hand of a little Māori boy at Waitangi on 6 February 1973 held out the promise of a future founded upon the uncomplicated and uncontested acceptance of racial equality.  

WAITANGI DAY commentary see-saws manically between the warmly positive and the coldly negative. Many New Zealanders consider this a good thing. They point to the unexamined patriotism of July Fourth and Bastille Day celebrations, and applaud the fact that the character of Aotearoa-New Zealand, and its future evolution, remain matters for passionate disputation, rather than military chauvinism and outsized flags.

Conservatives of a certain age are less confident of the virtue of this annual debate. They look back wistfully to that period of New Zealand history when the constitutive peoples of New Zealand, Māori and Pakeha, gathered at Waitangi to celebrate the 1840 treaty signing which, according to Queen Victoria’s representative, Captain William Hobson, constituted them as “one people”.

In the memories of these people, no Waitangi Day better illustrated this notion of national unity than 6 February 1973. That was the day when the newly-elected Labour prime minister, Norman Kirk, announced that henceforth Waitangi Day would be known as New Zealand Day.

A powerful visual image of Kirk’s intentions for this new public holiday was provided by the photograph of a big prime minister holding the hand of a little Māori child as the two of them made their way across the Treaty Ground. Symbolically, the image suggested that the rising generation of Māori should expect to live lives of equivalent fullness to those of their Pakeha compatriots. The photograph’s clear assimilationist message was not welcomed by all, but for a large number of New Zealanders it expressed their hope for a future founded upon an uncomplicated and uncontested acceptance of racial equality.

“Why can’t we have Waitangi Days like that anymore?”, these old-timers ask. “Why can’t we celebrate the positive national achievements of New Zealanders, regardless of ethnicity? What is to be gained, in terms of strengthening social cohesion, by foregrounding – and all-too-often fomenting – this country’s ethnic divisions?”

The straightforward reply from the nation’s historians, Pakeha and Māori, is that the legacy of conquest, land seizure, economic marginalisation, and cultural erasure central to the European colonisation of New Zealand is seared into the collective memory of its indigenous people. At some point, the historical injustices that have not been forgotten by the colonised will have to be acknowledged and redressed by the colonisers. To suggest otherwise, they insist, is itself an act of colonialist oppression. Moreover, as the rising generation of Māori nationalists are only too willing to point out, by no means all these injustices are historical. Far too many of them are contemporary.

The articulation of such grievances, long assumed by the victors of the New Zealand Wars to be safely buried in the past, gathered momentum throughout the 1970s and 80s and were characterised by legal challenges and vigorous political protests.

The impressive Māori Land March of 1975 hastened the creation of the Waitangi Tribunal. Equipped with quasi-judicial powers, the Tribunal was instrumental in investigating past wrongs, determining the most appropriate means of their redress, and introducing New Zealanders to a more complete account of their history. Over the course of the next 50 years, its power and influence would undergo significant expansion.

The forcible eviction of the Ngati Whatua occupiers of Bastion Point in 1978 presented New Zealanders with a rare and shocking demonstration of the raw power of the Pakeha state. Hundreds of Police officers were involved, with logistical support provided by the armed forces. The operation provided a jarring reminder to New Zealanders that the alienation of Māori land and resources was predicated on the actual or threatened use of force by political and legal institutions that were overwhelmingly dominated by Pakeha – and remained so.

The watershed event that finally extinguished the sunny optimism of 1973, however, was the 1981 Springbok Tour. The dramatic and at times violent incidents that marked the 56-day tour by Apartheid South Africa’s rugby team brought the idealistic champions of classical racial equality into frequent and often uncomfortable contact with Māori protesters who had experienced first-hand the widespread and deeply ingrained Pakeha racism that, thanks to the Tour, would ensure the re-election of Rob Muldoon’s National Government.

The young, well-educated, middle-class Pakeha who mostly comprised the anti-tour movement found themselves at a moral disadvantage when challenged to account for the fact that they were willing to suffer Police batons for Black South Africans but not for Brown New Zealanders. Why was the racism of the White South Africans capable of inspiring a mass anti-racist movement, but not the equally egregious colonialist excesses of Pakeha regimes past and present?

The only acceptable answer was: “Because we’re as racist as the Rugby thugs.”

“Damn right!” came the Māori nationalists’ retort, “And now is the time for you to do something about it!”

Which they did. For the next forty years the students who had supplied the shock-troops of the anti-tour movement accepted the wero Māori Nationalists had laid before them and slowly but surely integrated it into whatever institutions they found themselves in a position to influence and/or control. Political parties, the courts, universities, schools, hospitals, the public service, law firms, the news media, trade unions, even corporations: all those institutions into which young, idealistic New Zealanders were disgorged annually. Places where, increasingly, the best way to get along was to go along with the ever-expanding ramifications of “the principles of te Tiriti o Waitangi”, and the Crown-Māori “partnership” which the New Zealand judiciary had determined the Treaty to mandate.

By the 2020s this self-replicating social layer of te Tiriti-inspired professionals, administrators and managers numbered in the hundreds-of-thousands and was exerting a decisive influence over the evolution of New Zealand’s political, social and cultural institutions. Binding its members together was a deep mistrust, bordering on active hostility, directed at that part of New Zealand society which evinced little or no understanding of, or enthusiasm for, te Tiriti and the transformational narrative it was driving forward. That this part of New Zealand almost certainly outnumbered te Tiriti’s promoters and protectors gave cause for even greater concern, raising serious doubts about the cultural safety of democratic institutions.

Nevertheless, it was this strategic aggregation of Pakeha allies that facilitated significant cultural, economic, and political indigenous progress – precipitating a veritable “Māori Renaissance”. Mutually reinforcing, the alliance between Pakeha jurists, administrators, and educators, and the rapidly expanding Māori middle-class fostered by te Tiriti’s official rehabilitation and the opportunities flowing from a succession of substantial iwi-based “Treaty settlements”, continued to grow and strengthen. By the second decade of the twenty-first century it had solidified into the permanent and seemingly unchallengeable arbiter of New Zealand’s social, economic, cultural and constitutional development.

Te Tiriti’s victory may have been complete in these institutional islands, but they were surrounded by a vast sea of doubt. A substantial majority of Pakeha, as well as a growing portion of the recent immigrant population, struggled to accept the Waitangi Tribunal’s increasingly radical findings. Before their eyes the power of the Crown seemed to be crumbling away – a shrinkage of sovereignty fuelled by historical revisionists who flatly contradicted the public’s understanding (however flawed) of their nation’s story.

It was only a matter of time before this public doubt crystalised into public anger. Increasingly, the narrative growing out of the Treaty’s judicial and bureaucratic restoration was being presented to Pakeha in ways that not only made clear the “settlers’” general unfitness to shape its evolution, but also rejected, absolutely, their democratic right to do so.

That the 80 percent of New Zealanders who did not identify as Māori were to be given no say in elevating the Treaty’s status to that of supreme and unchallengeable law was finally made clear in the He Puapua Report. This document, penned by Treaty scholars and activists, and presented secretly to the Sixth Labour Government in 2019, detailed the changes required to ensure that New Zealand’s constitutional arrangements conformed with the United Nations Declaration on the Rights of Indigenous Peoples.

The measures required to achieve this goal in time for the bicentennial celebration of the Treaty’s signing in 2040 were deemed to necessitate a full-scale constitutional revolution. This was not to be attempted in one go, however, but piecemeal. Each step along the way was to be accomplished through stand-alone, apparently unconnected, legislative adjustments. Significantly, the plan included no provision for these cumulative, transformational, changes to be presented to the whole citizenry for ratification by referendum. Like the proverbial slow-cooked frog, Pakeha New Zealanders were to be kept in ignorance of their constitutional fate until it was too late to change it.

That such a plan was thought to be implementable in an open democratic society speaks eloquently of elite New Zealanders’ assumptions concerning both the powers they wielded and the extent to which those powers could be challenged by ordinary citizens. As Sir Geoffrey Palmer makes clear in his book The New Zealand Constitution In Crisis, confidence in his own and other elite actors’ ability to sideline the democratic process was considerable:

The logic of the approach was as follows… Some parliamentary action by way of legislation was needed to make a base. But if that legislation itself redressed the grievances it would run into the problem that the majority of the community would oppose it. If, on the other hand, legislation was used to set up processes, and procedures and the principles on which decisions should be based were stated, it may be possible to get even a majoritarian legislature to act. The initial commitment required was to a process. No tangible outcome was provided by the legislation itself. What should be done was to be decided only after judicial or quasi-judicial processes had assessed individual cases. First it was necessary to give the courts something to interpret. Such was the nature of the approach I brought to both statutory incorporation of the Treaty in statutes, and extension of the Waitangi Tribunal to examine grievances back to 1840.

What brought He Puapua and the elite Treaty project generally to grief certainly wasn’t its exposure and condemnation by mainstream journalism. Indeed, the opposite was true: the major media organisations saw themselves as integral to the project’s success. Ultimately, what doomed the elites’ Treaty project to failure was the democratising impact of social media.

Palmer’s “processes” required media gatekeepers committed to keeping “the majority of the community” out of the game. In fact, so reliant upon the exclusionary powers of these gatekeepers were Palmer’s strategies for their ultimate success, that the moment the Internet empowered ordinary citizens to receive and impart information independently of the mainstream media and its guard-dogs, they began instantly to fall apart.

The picture that emerged from the collective exertions of these “citizen journalists” was as clear as it was disturbing. The bureaucratic and administrative elites had, since the early-1980s, come to view themselves as the irreplaceable brain and muscle of what political scientists call the “permanent state”, and constitutional lawyers refer to, simply, as “The Crown”. They had arrived at this conclusion alongside the leadership of the tangata whenua, who saw themselves, and were certainly acknowledged by the leaders of the Permanent State, as the “Permanent People”. The relationship between the two was mutually reinforcing.

The conclusion to be drawn from this reading of New Zealand’s constitutional, political and cultural evolution is daunting.

The status of those who are members of neither the Permanent State nor the Permanent People is problematic – to say the least! That they constitute a majority of the population is openly acknowledged by both the Crown and Māori. But, majorities under pressure from minorities all-too-easily behave tyrannically. Meaning that, while New Zealand remains a representative democracy, the non-Crown, non-Māori majority is likely to be treated as a permanent threat.

Because, what are they really? Victims of history: the flotsam and jetsam of a botched process of colonisation? Communities without roots, lacking permanent interests, bereft of cultural awareness, and off to Australia at the drop of a hat? A people just passing through?

No wonder Māori politicians call these New Zealanders manuhiri – visitors.

But that is not what they call themselves. It would, therefore, be most unwise of both the Permanent State and the Permanent People to forget that these visitors, these citizens, still come armed to the teeth with votes.

This essay was originally posted on The Democracy Project website on Friday, 14 February 2025.

Māori Cannot Re-Write New Zealand’s Constitution By Stealth.

The Kotahitanga Parliament 1897: A Māori Parliament – at least in the guise of a large and representative body dedicated to describing the shape of New Zealand’s future from a Māori perspective – would be a very good idea.

THE DEMAND for a “Māori Parliament” needs to be carefully unpicked. Some Pakeha, thoroughly alarmed by the incendiary rhetoric surrounding the proposition have taken to muttering darkly about “sedition” and “treason”. This is not a helpful line of reasoning to pursue since a threat, if it is to be counted real, requires a credible means of delivery, and, as far as we know, Te Pāti Māori has little to put in the field beyond the thousands of peaceful protesters it has already deployed. But, if the proposition is not to topple New Zealand’s present political system and replace it with one more reflective of Māori tikanga, then what, exactly, do these Māori constitutional architects have in mind?

Crucially, given the fundamental importance of the issues under review, that remains far from clear – at least to most Pakeha. This is not accidental. Indeed, the Māori reticence to openly discuss constitutional reforms with Non-Māori is entirely deliberate. Although constitutional discussions have been taking place within Te Ao Māori for decades, and in spite of the fact that the discussions and debates of the past five years have brought at least the scaffolding of an “Aotearoan” constitution into much sharper focus, Māori are extremely reluctant to discuss their constitutional ideas with the rest of New Zealand.

Their unwillingness is entirely understandable. Most New Zealanders’ understanding of the constitutional instruments by which they are governed is pretty hazy. They know that their country is a monarchy, although an alarming number of them do not appear to appreciate that it is a constitutional monarchy. Many are convinced that the King retains the power to – and should – intervene directly in the nation’s political affairs. They will similarly affirm that their country is a democracy, even if far more of them than is good for any democracy utterly despise the politicians they elect, and would happily reduce their numbers by half. Most Kiwis are confident that they “know their rights”, but are not at all sure it is wise to make them available to everybody.

The sheer scale of this constitutional ignorance, on full display during the occupation of Parliament Grounds in 2022, is frightening. The capacity of New Zealanders to transform themselves, from groovy anarchist collective to howling lynch mob, in no more time than it takes to shout “Hold the Line!”, was daunting enough for educated middle-class Pakeha. For those seeking to advance the cause of New Zealand’s indigenous minority, it can only have been profoundly discouraging.

The question they’ll be asking themselves and their fellow reformers is a brutal one: If Maori cast their constitutional pearls before these pig-ignorant Pakeha, would they have even the faintest notion of what Māori were on about? Assuming that, among those pearls, were the concepts roughed-out in the He Puapua Report, and the institutions sketched by the late Moana Jackson in his Matike Mai paper, the answer would be an emphatic “No!” A new constitution, predicated on the twin principles of Decolonisation and Indigenisation, or, as most Pakeha would instantly rephrase the proposition: a constitution based on race; simply will not fly.

That the mainstream news media seem equally uneasy about spelling-out the ramifications of the sort of reforms favoured by Māori intellectuals is strongly suggestive that editors, too, fear the reaction of “Boomer Cracker Settlers”. Though younger political journalists will eagerly affirm that Pakeha New Zealand has moved on from the sentiments of Don Brash and the Iwi vs Kiwi election of 2005, their bosses seem remarkably skittish about in putting the Millennials’ confidence to the test.

Considering the huge response non-mainstream media outlets, websites and bloggers almost always receive whenever they publish, broadcast or post on the Treaty of Waitangi, decolonisation and/or indigenisation issues, the reticence of mainstream journalists makes a kind of sense.

If, for example, the big media outlets had opted to present the developing story concerning the Waipareira Trust, Te Pāti Māori, and the alleged use of Te Whatu Ora and Census data in the 2023 General Election, in the same way mainstream journalists reported Māori issues twenty years ago, then the public response would likely be crushingly negative. All the more reason to exercise discretion, the journalists of today would argue. If you can’t write something positive about the tangata whenua, then don’t write anything at all.

But this simply will not do. New Zealanders dwindling faith in the mainstream news media will not be restored by such stratagems – especially when so few other New Zealanders are afforded such lavish media protection.

Nor is it possible to bring about significant constitutional change whilst refusing to engage with the overwhelming majority of those who will, ultimately, be required to live with it. And yet, some Māori radicals are already warning that the movement towards an indigenous constitution is being “infiltrated” by “Kūpapa [Crown supporting] Māori”, and celebrating the fact that most of the gritty constitutional discussion is taking place in Te Reo. Such attitudes are certain to prove counter-productive. An already wary Pakeha population will simply become further convinced that Māori are keeping vital information from them.

Certainly, the conduct of the Labour Government between 2020 and 2023 convinced many conservative Pakeha that, in acknowledgement of the fact that consent from the Pakeha majority was unlikely to be forthcoming, significant constitutional change was going to be imposed, piecemeal, from the top down. Lots of little changes, introduced by legislation, would, by 2040 (the bicentenary of Te Tiriti o Waitangi) have added up to really big change – and all of it secured without having to put a conventional constitutional document to the people for ratification by means of a binding referendum.

That’s not the way to change the minds of your fellow citizens. Māori cannot re-write New Zealand’s constitution by stealth. Change will only happen by Māori being open and honest about what they are hoping to achieve, and by giving Non-Māori plenty of good reasons to help them. In this regard, a Māori Parliament – at least in the guise of a large and representative body dedicated to describing the shape of New Zealand’s future from a Māori perspective – would be a very good idea.

Who knows, after observing the way it contributed to building a more understanding and inclusive society, New Zealanders might even vote to incorporate it into what their children are already calling the bi-cultural constitution of Aotearoa-New Zealand.

This essay was originally posted on The Democracy Project's substack page on Friday, 7 June 2024.

Proceeding Without The People: Labour’s Gift To The Right.

Colonial Relic: The te Tiriti-driven constitutional transformation proposed by the parties of the Left makes no provision for popular ratification. The radical changes proposed – like Three Waters – will either be imposed by statute, or achieved by judicial fiat. No heed will be given to the venerable notion that it is unacceptable for a government in possession of a temporary parliamentary majority to fundamentally change the rules of the political game. 

BY THE SECOND HALF of 2022 the right-wing assault on the Treaty policies of the Left will be raging.

At the level of local government, candidates known to support the Government’s Three Waters scheme will be targeted for electoral destruction. The local government elections will be repurposed as a national referendum on the Three Waters legislation. If its supporters are voted out, then the Government will face increasingly angry demands for the scheme’s abandonment.

On the broader political front, NZ First, finally free of the Serious Fraud Office’s investigation, will be terrifying rural and provincial audiences with tales of rampant, government-supported Māori separatism hellbent on destroying New Zealand democracy.

With contrapuntal precision, Act’s David Seymour will be reassuring the people Winston Peters has been terrifying that the price of Act’s participation in any coalition government of the Right will be the effective nullification of the Treaty of Waitangi.

National, with less venom and vitriol than its potential allies, will, nevertheless, have re-positioned itself on Treaty issues. Christopher Luxon will argue that what “normal” New Zealanders want more than anything in 2023 is a restoration of “social cohesion”. National’s position will be that social cohesion is impossible while three of New Zealand’s parliamentary parties are promoting racially-charged and undemocratic policies calculated to drive New Zealanders apart.

Labour’s, the Greens’ and the Māori Party’s ability to successfully counter the Right’s attack will be fatally undermined by their deafening silence on the key issue of whether or not they intend to seek formal popular authorisation for their radical (some would say revolutionary) proposals.

To date, however, the te Tiriti-driven policies and plans of all three left-wing parties offer no opportunity for the people of New Zealand to have their say on the profound constitutional changes being promoted.

The Left’s refusal to abide by the long-established conventions for validating and effecting significant constitutional change in New Zealand will leave them wide open to the charge that they are conspiring to brush aside their country’s democratic traditions.

The most damaging aspect of the Right’s charge will be that it is true.

The te Tiriti-driven constitutional transformation proposed by the parties of the Left makes no provision for popular ratification. The radical changes proposed – like Three Waters – will either be imposed by statute, or achieved by judicial fiat. No heed will be given to the venerable notion that it is unacceptable for a government in possession of a temporary parliamentary majority to fundamentally change the rules of the political game. The convention that significant constitutional reform – like altering the way parliamentarians are elected – must be put to a referendum, will be over-ridden.

Labour and the Greens have “form” in this regard.

The Labour-led government of Helen Clark established the New Zealand Supreme Court and abolished the right of New Zealanders to appeal to the Privy Council in London, simply by passing a law to that effect. In spite of the radical reformation of the New Zealand judiciary proposed by the law’s supporters, New Zealanders were given no opportunity to vote the reforms up or down.

Labour’s parliamentary caucus has not grown any more supportive of New Zealand’s democratic political culture in the years since the Supreme Court Bill was passed in 2003. Indeed, the venomous scorn poured upon the defenders of freedom of expression by some Labour and Green MPs strongly suggests that the rights and freedoms granted to all New Zealanders by the Bill of Rights Act (and, for that matter, the Treaty of Waitangi) are regarded as irritating obstacles to the imposition of a new te Tiriti-based political order.

The process adopted by the Clark Government in relation to the Supreme Court Act is, however, instructive.

According to the Department of Courts own historical summary:

The issue re-emerged in early 2000, when the Labour/Alliance Government agreed to review the role of the Privy Council. In December 2000 Cabinet approved the release of a discussion paper entitled Reshaping New Zealand’s Appeal Structure. It invited public comment on three options to replace the Privy Council. Submissions were evenly divided on whether appeals to the Privy Council should be abolished or retained. There was a clear consensus however that if appeals to the Privy Council ended, a replacement stand-alone court sitting above the Court of Appeal should be established.

Further public consultation culminated in the report of a Ministerial Advisory Group. This formed the basis of a Supreme Court Bill. The bill was introduced in 2002, and passed by Parliament on 14 October 2003. The Act came into force on 1 January 2004, officially establishing the Supreme Court, and at the same time ending appeals to the Privy Council in relation to all decisions of New Zealand courts made after 31 December 2003.

Remember that sequence: A “discussion paper” is released. Public “comment” is invited. In spite of expert opinion being “evenly divided”, “further public consultation” takes place. Eventually, a “Ministerial Advisory Group” presents a report. This report becomes a government bill. Public submissions on the bill are invited by a Select Committee of the House. The shape of the bill remains essentially unchanged. Despite strong representations from four of the seven parties represented in Parliament, the call for a referendum is rejected. The bill passes, 63 votes (Labour, Greens, Progressives) in favour, 57 votes (National, NZ First, Act, United Future) against.

That is how easily our constitution can be changed – if a government is sufficiently motivated to do so.

This essay was originally posted on The Daily Blog of Thursday, 10 February 2022.