Upton-on-line August 11th

Even More on the Treaty

Recent editions of upton-on-line have covered GM cows, trade agreements and the survival of the nation – all through the prism of the Treaty of Waitangi. We thought we could turn elsewhere this week but the Treaty production line is in over-drive and no-one can find the stop button. The Government’s decision to import Treaty clauses into its new health legislation breaks new ground which we will describe. Upton-on-line also discusses what Article 3 may or may not mean. Finally, we report on Maori reaction to the Government’s stance on Fiji.

Treat(y)ing Health

In today’s edition of the National Business Review upton-on-line has laid out the latest lunacy proposed by the Government. [Click at the end of this article to access the full text] It can be swiftly summarised here: for the first time ever, a New Zealand government is proposing to subject legislation governing a major social service – the public health system – to the Treaty of Waitangi.

The formula being used is a familiar one. The purpose of the Act is to be read in a way that “recognise[s] and respect[s] the principles of the Treaty of Waitangi. Its provisions are to be “interpreted in a manner that is consistent with the principles of the Treaty of Waitangi”.

No-one knows what this means. But all advice to the Government is that it will increase the risk of litigation as the clauses are used to gain leverage over public health dollars. Notwithstanding this advice, the Government has moved to introduce the legislation. The result will be a new round of judicial constitution-building.

Media coverage has largely focussed on the spat between John Tamihere and Tariana Turia about whether the new District Health Boards should forge links with mana whenua or manuhiri (and has drawn a stiff warning from Shane Jones). There has also been coverage about the exciting new system of mixed STV voting and ministerial appointments to guarantee proportional Maori membership of boards.

But all this is, relatively speaking, a side-show. It is the premises on which the importation of Treaty clauses into social legislation are based that are truly revolutionary. This is what the key cabinet committee paper says:

“The insertion of a Treaty clause is acknowledgement that Government accepts that Maori do have claims upon the health system in addition to those that they have as citizens, which relate to their status as indigenous people and Treaty partners, and their desire to have a say over the delivery of their own health and disability services.”

In upton-on-line’s respectful view, this is truly novel and very divisive. No-one, least of all ordinary Labour supporters, voted for the idea that being descended from the first race to arrive here conferred extra entitlements. The bit about wanting a say over the delivery of services makes the patronising assumption that the rest of us don’t. It also slides over the fact that the health reform upton-on-line introduced led to the biggest increase in the provision of health services by Maori in our history. And it didn’t need a Treaty clause.

How on earth have these ideas got legs? The answer lies in muddled – and increasingly fanciful – accounts of what Article 3 of the Treaty means grafted onto judicial statements about what the principles of the Treaty are (something that only judges have been able to articulate some one and a half centuries after the Treaty was executed).

[Click here to read the full article]

“That’s an Article 3 matter…”

For years now, mutterings about whether all sorts of issues could be squeezed under Article 2 of the Treaty have been met with the innocuous sounding statement that “that’s an Article 3 matter”. What people loosely meant was that whatever it was that people were trying to advance as a special right (applying only to Maori under Article 2), was something that everyone was entitled to. And so the idea grew up that health, education and so on were guaranteed by Article 3.

It’s time to record what Article 3 says. Here are the two versions. First the English text:

III. In consideration thereof Her Majesty the Queen of England extends to the Natives of New Zealand Her royal protection and imparts to them all the Rights and Privileges of British Subjects.

And here is the Maori text as translated by Sir Hugh Kawharu:

III. For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England.

Take your pick. I prefer the Maori version, but either way it is clear that Article 3 is all about people having the same status and legal rights under British law. That meant a right to participate in the political system on the same terms as settlers (and of course there was no universal franchise at the outset); and the right to claim the same legal protections – in statute and at common law – as the settlers. The flip side was an obligation to obey the laws for the time being prevailing.

Article 3 has nothing to say about any particular policy of the government of the day. The only sense in which health or education could be said to invoke Article 3 is the fact that, to the extent that these services are financed by taxes, all citizens – Maori and otherwise – are required to contribute through the tax system and can claim whatever entitlements are legislated for.

If Parliament chooses to provide those services on the basis of need or income or race, it is free to do so. But there is no Treaty requirement to provide anything on any particular basis.

If Maori wish to mount a claim to special rights, they must be able to fit within Article 2 – and that’s (in the Maori version) all about chieftanship over “their lands, village and all their treasures”. Whatever the extent of that chieftanship or rangatiratanga, and whatever the nature of those treasures or taonga, I don’t think you can reasonably import the entire redistributive system of taxes and social services. The bow won’t stretch that far.

The so-called principles distilled by the Privy Council – partnership, participation and protection – are just that: principles sketched by judges on a canvas left blank by legislators who have sought to push the Treaty to one side with soft words as a substitute for sorting their minds out. We have all been guilty of that. It’s time it came to an end. Drawing a line under social legislation would be a good start.

The Nerve Endings Fiji Has Jangled

Some time ago while George Speight was riding high, New Zealanders witnessed Tame Iti and others make cameo appearances in his support. Upton-on-line suggested that shock waves from Fiji were running deep in New Zealand even if no-one particularly wanted to say so.

This week upton-on-line received under the Official Information Act copies of correspondence sent to government ministers about their handling of the crisis. Upton-on-line has been largely complimentary of Phil Goff’s handling of events there. But not all his correspondents have been. Here is the (partial) text of a letter from Manahi Baker of Te Runanga o Ati Awa ki Whakarongotai Inc:

Tena koe e Phil

“What government is the best? That which teaches us to govern ourselves.” Goethe

Our hearts and minds have turned to Fiji over the past few weeks and we are moved to write because of the New Zealand response to the hostage situation, and in particular your comments as Minister.

The New Zealand government response to the Fiji situation seems to have been deeply affected by our own media reactions, themselves founded on an obvious lack of understanding of the Fijian way, which is based on the moral and familial obligations of kinship and tribalism. Just because the media and you don’t understand this system of forgiveness and reconciliation does not make it invalid or inappropriate. From our Runanga’s perspective the New Zealand government response in these last two weeks has been patronising and offensive. Parachuting in your standards can only result in oppression of indigenous Fijians and more violence.

The Taranaki tribes know well the consequences of loss of control over tribal lands, loss of decision-making powers and loss of the capacity to gain economic benefits from our own resources. The so-called democratic system we now like in has only served to create a culture of grievance. Is this what you want for Fiji too?

[The writer then makes the case against sanctions and in favour of a uniquely Fijian constitutional solution. He then closes:]

Your government’s response has simply served to make the situation worse and fills us with a sense of shame. Let the Fijians develop their own solutions, their own constitution, and their own government and provide support; not sanctions.”

This critique of democracy is precisely that levelled by Moana Jackson and others against the system of parliamentary democracy we have practised in New Zealand longer than any other country. Time will tell whether New Zealanders are as lethargic in defence of democracy as they appear to be about the extension of novel Treaty principles in contemporary legislation.

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