Susan Wood interviews Te Ururoa Flavell and David Round
Maori Party says discussion around role of Treaty of Waitangi in NZ’s Constitution will not go away
The Maori Party’s Te Ururoa Flavell told TV One’s Q+A programme that the current review of NZ’s Constitution was a way
forward for both Maori and non-Maori in order to bring the country together under one agreed law.
The Maori Party negotiated a Constitutional review into its Coalition Agreement talks with the National Party after the
2008 election. A panel of 12 New Zealanders is looking into the pros and cons of having a constitution written down in a
single document, the role of the Bill of Rights 1990 in a constitution, the role of the Treaty of Waitangi in our
constitution, how Maori views should be represented in national and local government, and electoral issues such as the
size of Parliament and the length of its term, as set out in the Review’s Terms of Reference.
Mr Flavell said that even if nothing came from this review, the issue would not disappear.
“Treaty rights are not going to go away. On the 6th of February every year, the discussion will be exactly the same, and
until such time as we enter into the dialogue about how Treaty rights can be brought to the fore and recognised for
Maori and also obligations on the Treaty partner – Te Taha Tiriti – then we will always be in conflict, because they
will not have been settled. I mean, justice delayed is justice denied,” Mr Flavell told Q+A host Susan Wood.
But a group opposed to the Constitution’s review say it’s a major threat to NZ’s democracy.
David Round says until there is consensus on the meaning of the Treaty of Waitangi and the principles within it then it
has no place in the Constitution.
“The principles are simply modern political interpretations, and essentially they are the distillation of whatever Maori
choose to claim next. And so, for example, we have various Maori saying it is not the Maori way to bind future
generations, and therefore there will inevitably be another round of Treaty claims in another generation. Now, if our
Treaty principles were in the constitution and judges were to say, ‘Oh yes, that’s the case – Maori can’t bind future
generations,’ then in a generation’s time, we would find courts declaring that current full and final settlements are
not full and final, and we will have claims forever.
“I think that for the last generation, we have actually been heading in the direction of increasing separatism in this
country, and this strapping and snarling is actually leading us further towards an apartheid state, which is where we’re
going to end up if we’re not really careful,” Mr Round said.
But Mr Flavell said that the issue would not go away, so it was important to have a discussion on where the Treaty
fitted within a Constitution so that as many voices could be heard as possible.
“We as a Maori Party and as a political movement are part of a bigger history about the recognition of Treaty rights in
this country. Simply because we happened to take it off the agenda at a political level, it won’t stop… so for anybody
to believe that it’s just going to fall off the table by itself and nothing come of it, they’ll be dreaming. That’s why
we need to have a good discussion about it,” Mr Flavell said.
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Q + A – April 28, 2013
TE URUROA FLAVELL
Maori Party MP
and
DAVID ROUND
Independent Constitutional Review
Interviewed by SUSAN WOOD
SUSAN Te Ururoa, good morning to you.
TE URUROA Tena koe, Susan.
SUSAN How can the Treaty principles be enshrined in some sort of written constitution when
there's still so much disagreement on what they actually mean and how they can be applied?
TE URUROA Well, I think we’ve got to go back to the very starting point that constitutions for us are
about promises. They are a declaration, if you like, about how we want to move forward as a country. They are sort of
not road maps, per se, with detailed instructions, but very much around sign-posting things that we should have in front
of us. The Treaty of Waitangi is our promissory note that sets a way forward for the country for both you and I, and—
SUSAN So if that promissory note were to be enshrined in a written constitution, everything we
did would have to run through an 1840 document, essentially, wouldn’t it?
TE URUROA Well, certainly that’s a part of the discussion to be had, but, I mean, the Treaty sets out
rights and obligations on you and I as Treaty partners, and at this point in time, the big picture is that 60 per cent
of New Zealanders say it is our founding document, according to a Human Rights Commission report last year. Fifty-one
per cent say it belongs to us. Against that background, look, the Treaty of Waitangi must be a part of any discussion
around the constitution for our country.
SUSAN Very different, though, a founding document to actually making it work in 2013 and
beyond, isn’t it?
TE URUROA Well, I mean, I think people have struggled over the years with how to make it work in a
practical sense, whether that be in hospitals and schools or whatever. This opportunity is great for us as a country,
because it allows us to enter into that debate to find out the big-picture items, as your other speaker talked about,
enshrining the issues of the Treaty into the constitution of the country, but also it may well be a dropout to practical
implementation of Treaty principles at the workplace.
SUSAN Let me bring David Round in here. Good morning to you, Mr Round. You said in a speech
this month that including the Treaty in the constitution is a con job. What do you mean by that?
DAVID I mean that Maori themselves know, many of them, perfectly well that this is not what
the Treaty actually promised. What the Treaty actually said was that we all were to be one people under the Queen’s law.
And at the time of the last round of full and final settlements, which we’re now coming to the end of, the promise then
was that after those full and final settlements were gone and settled, we would move forward as one nation. And yet we
find ourselves constantly now being subject to more and more extreme claims, of which this one is just the latest.
SUSAN But let me just stop you there. If we regard the Treaty of Waitangi as our founding
document – we’ve just heard Mr Flavell refer to it as that, and I think it’s a pretty common acceptance that that’s what
it is – what is the harm in entrenching it in a written constitution?
DAVID Well, because there is no certainty at all as to what the principles are. The
principles as given by the courts are simply a list of platitudes. The courts themselves have said that those principles
are going to grow, and the principles as they are misinterpreted now are actually the very contrary of what the Treaty
actually said. Mr Flavell talked about the principle of partnership. There is no partnership between the Queen and her
subject, yet nevertheless if we have partnership enshrined in our fundamental constitutional document, then that is
going to give equal rights to a small minority of the population with the rest of the population.
SUSAN So are you saying that Maori will get special privileges? I think you’re quoted as
saying, in fact, that it would make all non-Maori second-class citizens.
DAVID That’s got to be inevitable.
SUSAN How? How does it do that?
DAVID Simply because the Treaty is misinterpreted now to mean that Maori have special
privileges in our constitution. The principles are simply modern political interpretations, and essentially they are the
distillation of whatever Maori choose to claim next. And so, for example, we have various Maori saying it is not the
Maori way to bind future generations, and therefore there will inevitably be another round of Treaty claims in another
generation. Now, if our Treaty principles were in the constitution and judges were to say, “Oh yes, that’s the case –
Maori can’t bind future generations,” then in a generation’s time, we would find courts declaring that current full and
final settlements are not full and final, and we will have claims forever.
SUSAN Mr Flavell, let me get you to respond to that.
TE URUROA Which part? Let me start with one or two things in the first part.
SUSAN Well, actually, specifically that the claims will go on forever, for example – not
binding future generations.
TE URUROA Well, I mean, Mr Round talks about the extreme desires on Maoridom and possibly being subject
to special treatment. I mean, if Mr Round believes that getting two per cent of the real value of Treaty claims back to
Maoridom is special privilege, then I think he’s badly, badly informed. Second point is, that of course, the problem
that is in front of us here is that there's different interpretations of the Treaty. In that sense, he’s right. But the
one thing that we haven’t come to agreement about is that there are two versions. Clearly one written in Maori, one
written in English. My understanding is that that Maori is one is certainly the one that’s bought into by most Maori in
this country as a way forward for us to move. The downside is, of course, that the government has a different view, and
that’s why this discussion is so important. If it is that it’s cause for so much concern for at least just the small
minority of people that Mr Round might represent, what we do need to do is have this discussion, and this panel is one
way of opening the discussion, following up on efforts in the past by people like Sir Paul Reeves to open discussion up.
SUSAN But if it were to be entrenched, it would give Maori special privileges. It could make
non-New Zealanders second-class citizens— uh, non-Maori second-class citizens, couldn’t it?
TE URUROA Look, the Treaty is about us working and being together. It’s not about taking away somebody
else’s rights to give to me. What it is about is—
SUSAN But it gives Maori special rights, doesn’t it?
TE URUROA Say that again, sorry.
SUSAN Does it give Maori special right? That’s Mr Round’s point.
TE URUROA Well, as I said, treaties are about rights and obligations that were signed in 1840. From a
Maori perspective, they continue to be relevant, and the discussion must be about those rights and obligations for me as
a Maori, but also all other New Zealanders, and that’s why, as I say, this discussion is so important.
SUSAN Mr Round, do you agree the discussion is an important one to be having right now?
DAVID Well, yes, but the trouble is I think the terms of the discussion are indeed stacked,
as Professor Joseph pointed out. The terms of reference of this panel themselves are set, and indeed a large number of
New Zealanders have never even heard of this, and I’m afraid that the people who are going to make their views known to
the panel are mostly going to be the vocal extremists – Mr Flavell’s friends.
SUSAN Mr Flavell, he has a point – it does seem that we often hear the same voices.
TE URUROA Well, maybe so, but he says that we haven’t heard too much about this panel. Well, I don’t see
what the point is. At the end of the day, Mr Round has accused this panel of having a pre-determined outcome. Well, if
we look at it, Mr Round’s group also seem to have a pre-determined outcome that there should be no reference to the
Treaty in this discussion. What we must do is focus on bringing the country together. This is a way forward to do that.
Treaty rights are not going to go away. On the 6th of February every year, the discussion will be exactly the same, and
until such time as we enter into the dialogue about how Treaty rights can be brought to the fore and recognised for
Maori and also obligations on the Treaty partner – te Taha Tiriti – then we will always be in conflict, because they
will not have been settled. I mean, justice delayed is justice denied.
SUSAN Mr Round, you also say— well, you actually said in the same speech that I referenced
before – we cannot trust the judges, and one of your concerns is that if the Treaty were to be entrenched in a written
constitution, the power would move from Parliament to the judges.
DAVID Well, that’s right. As in the United States – the United States Supreme Court can
actually strike down legislation, and indeed already our Chief Justice – fortunately not from the bench – has actually
said that she considers herself entitled right now to strike down democratically made acts of Parliament. Now, if that
happens, that would be tyranny. That would be as much a coup d’état as if armed men entered Parliament and drove the
members out at gunpoint. And of course, from the decisions of the judges, there is simply no appeal. We would be subject
forever to judges’ possibly radical interpretation of Treaty principles.
TE URUROA Susan—
DAVID That’s very frightening. That would be an end to democracy and the rule of law.
SUSAN Let me get Mr Flavell in here. Let me get Mr Flavell in here.
TE URUROA Susan, the sorry part about this is that Mr Round and his group are already pre-determining
the outcome of the discussion. For him to say that this will happen and that will happen, even before the discussion has
actually concluded, is basically scaremongering, and what we need to do is move past that, have the discussion, allow
the debate. He and his group should be allowed to go along to the discussion panels and have their say, just as much as
Maoridom under the Iwi Leadership Group should have their say. Put it on the table, but let’s not pre-determine the
outcome. The hope will be that we actually bring forward a document that brings together the views over a four-year
period, which is a long discussion in some regards, to make sure that what we come out with – the end outcome – will be
something that we can all live with. But to scaremonger against that is really out of order.
SUSAN You are really, though, committed, aren’t you, Mr Flavell – certainly in your personal
view and the Maori Party view – to getting, if you could, the Treaty entrenched in some sort of written constitution.
TE URUROA Yes, that’s the view, but let’s just put this in context as well. I mean, the constitution
review has five parts to it. It talks about the Bill of Rights – something that has enshrined through English law. We
have electoral representation, Maori representation. We have the Treaty and whether that should be enshrined or not, and
we… the bigger picture with respect to all laws in the country. Let the discussion go. Let’s have the discussion.
SUSAN Mr Round, we should be having this discussion around all those things, shouldn’t we?
DAVID Well, yes, and of course we are contributing to the discussion. We’re not pre-empting
it. We are contributing to it. But in fact all these other things are actually a smokescreen, because there is only one
purpose behind this review – the Maori Party isn’t concerned about the number of MPs in Parliament or any of these other
things. The Maori Party is concerned about just one thing. This is the big push, and if they succeed in this big push,
then our country will be stuffed forever.
SUSAN Mr Flavell, I need you to respond to that. I think he’s saying “if you get the Treaty
into the constitution, our country is stuffed forever”, was the quote.
TE URUROA Well, as I say, that’s just scaremongering. At the end of the day, the Maori Party went into
this relationship with the National Party to achieve a goal, which was to look at a document that is about bringing
people together, living together, working together, carrying on in this country, building a country that we’ll all be
proud of. There have been some issues along the way with respect to how the Treaty has worked or has not worked for
Maoridom and indeed the country over the last 150 years. And in fact, legislation in this country deliberately got rid
of it and chose it to be a nullity. Over the last— Since 1975, at least, there's been a concerted effort by governments
to at least put it on the table. This is a part of the on-going discussion that we need to have into the future.
SUSAN If you don’t—
TE URUROA For anyone to consider that we’re doing this for one means to an end, then they’re simply
wrong and it’s scaremongering, and I hope that New Zealanders contribute to the discussion in a bigger way.
SUSAN If, from your perspective, there's not a recommendation to entrench the Treaty in some
sort of written constitution, is that failure?
TE URUROA No, I think—Well, it’s something that will be on-going—
SUSAN So you just keep ticking away?
TE URUROA I mean, the Maori Party’s going to be around for a while.
SUSAN If it doesn’t work this time, it’s something you’ll keep working on?
TE URUROA Oh, absolutely. I mean, look, we as a Maori Party and as a political movement are part of a
bigger history about the recognition of Treaty rights in this country. Simply because we happened to take it off the
agenda at a political level, it won’t stop. The Ratana Church movement, for example, have had it on the table since way
back when, so for anybody to believe that it’s just going to fall off the table by itself and nothing come of it,
they’ll be dreaming. That’s why we need to have a good discussion about it.
SUSAN Quick final question: do you think this review is bringing us closer together or – we’ve
heard some different views, of course, from Mr Round this morning – or taking us apart as peoples?
TE URUROA Look, I suspect that Mr Round’s group are really just a minority group. The good thing about
the panel that’s been pulled together – it’s 12 high-powered, highly intellectual people that are on the ground
listening to the views of New Zealanders, have a background in this sort of stuff and constitutional issues. We also
have a Maori working party through the Iwi Leaders Group, and of course there's the other one – Muriel Newman – who has
her group out there somewhere trying to get views in. At the end of the day, I look forward to the discussion and hope
that we don’t pre-empt it. Let it run, let’s see what comes out of it and the hope will be, against the background that
60 per cent of New Zealanders say that the Treaty of Waitangi belongs to all of us, then I’m hoping that they see that
there is a part to be played by them and myself as Treaty partners in the future of our country at a very high level.
SUSAN Sure. I need to give Mr Round a quick last work. Mr Round, same question – do you think
that a review like this brings us— At least we’re having the conversation. Do you think it brings us closer as people?
DAVID No, I think that for the last generation, we have actually been heading in the
direction of increasing separatism in this country, and this strapping and snarling is actually leading us further
towards an apartheid state, which is where we’re going to end up if we’re not really careful. We seem to assume that
whatever we do, everything is always going to be fine. But countries can ruin themselves through their own folly, and
that is actually a possibility for our own poor country here.
SUSAN Thank you very much both for your time this morning. David Round from Wellington and Te
Ururoa Flavell, who was in Rotorua.
ENDS