Jackson and the Treaty – it seems he has forgotten what Lange said about partnership and why Clark wouldn’t sign UN declaration.

Let’s hear it for Labour’s Willie Jackson, a minister of this, that and the other in the Hipkins government and a fellow with a curious grasp of what happened in the days of David Lange and Helen Clark.

In Parliament yesterday, Jackson said ACT leader has a lot to answer for:

“He’ll kill our Māori Health Authority. He’ll get rid of Māori seats on councils. He’ll dismantle not just Māori things but the ministries of women’s affairs, ethnic affairs, Pacific affairs. “It’s shocking what he’s going to do, and yet he makes out he’s this huge expert in terms of indigenous rights. Well, I can’t remember him being a lawyer at the Supreme Court or the Privy Council, but he seems to know more about Māori indigenous rights than every High Court judge, Supreme Court judge, or Privy Council judge who has supported Māori indigenous rights since 1987. “As well as that, Mr Seymour thinks he knows more about indigenous rights than every National Prime Minister and Labour Prime Minister. Think about that: David Lange, Geoffrey Palmer, Jim Bolger, Jenny Shipley, Mike Moore, Helen Clark, John Key, Bill English, Jacinda Ardern, and our wonderful Prime Minister Chris Hipkins, along with judges like Dame Sian Elias, our current Chief Justice, Dame Helen Winkelmann, and Lord Cooke, who, along with his fellow judges Sir Ivor Richardson, Summers, Casey, and Bisson in 1987, talked about partnership.”

Jackson proceeded to insist:

“They made it clear that partnership is an integral part of the Treaty and that Māori have special rights.”

Did they – and does it?

The Treaty of Waitangi does not mention “partnership” or “co-governance” and it contains no set of treaty principles to guide its many contradictory interpreters.

Noting what the treaty does not say in an article a few years ago, Point of Order said:

But judges are dab hands at telling us what the treaty really means and at helping to build a set of principles to influence public attitudes and policy. The idea of a “partnership” binding Maori and the government, for example, has been traced back to a 1987 Court of Appeal decision stating that the Treaty established a relationship ‘akin to a partnership’. Professor Elizabeth Rata has written that this came to justify non-public negotiations between the tribal elite and government ministers when former Deputy PM Geoffrey Palmer met a tribal leader, Sir Hepi Te Heuheu, in 2004. And partnership language quickly became an effective strategy in institutionalising the corporate tribes’ economic and political interests.

Here’s where former Prime Minister David Lange comes into considerations.

As recently as 1990, he contended:

“The treaty cannot be any kind of founding document, as it is sometimes said to be. It does not resolve the question of sovereignty, if only because one version of it claims one form of sovereignty and the other version claims the opposite. “The court of appeal once, absurdly, described it as a partnership between races, but it obviously is not. The signatories are, on one side, a distinctive group of people, and on the other, a government which established itself in New Zealand and whose successors represent all of us, whether we are descendants of the signatories or not. The treaty cannot even resolve the argument among Maori themselves in which one side maintains that you’re a Maori if you identify as such, and the other claims that it’s your links to traditional forms of association which define you as Maori.”

This notion of partnership is a comparatively recent construct.

A New Zealand Herald report in 2004 referenced Ministry of Justice information that there were 22 laws which imposed duties or responsibilities in relation to the Treaty of Waitangi and its principles; there were four statutory appointment processes involving Treaty of Waitangi considerations; and 13 laws in which there was general reference and recognition of the Treaty of Waitangi.

The Crown Minerals Act 1991 said “all persons exercising functions and powers under the Act are required to have regard to the principles of the Treaty of Waitangi” whereas the Conservation Act 1987 said “The Act is to be so interpreted and administered as to give effect to the principles of the Treaty of Waitangi” and the State Owned Enterprises Act 1986 said “Nothing in this Act permits the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi.”

Which principles?

As became evident further down the Herald report, they are still being gathered.

Other principles are identified in various court decisions and Waitangi Tribunal reports and will continue to be identified, but the 1987 case produced the mother of all treaty principles – partnership.

This takes us back to the Court of Appeal judgement in 1987 in a case over disposal of state-owned land brought by the Maori Council.

It is evident our legislators – including former Attorney General Sir Geoffrey Palmer – did not anticipate the court’s interpretation.

The Herald report goes on:

Even Sir Geoffrey said he had been surprised at the judgment. He told the Herald this week that the clause had had “unexpected consequences” “It did come as somewhat of a surprise to me that the Court of Appeal read that phrase up rather than read it down,” he said, explaining that the court had given the clause “a very wide and generous interpretation”.

Sir Geoffrey by then was advocating that Parliament be as precise as it can be over such references.

“A vague reference to treaty principles is not as good as a specific reference to what it is you want done.”

Let’s move on to Helen Clark and those indigenous rights which Jackson mentioned.

She was PM when New Zealand became one of four countries that would not sign the Declaration of Rights of Indigenous Peoples in 2007.

Prime Minister Helen Clark, heading a Labour-led Government, at that time was guided by Crown Law advice that the declaration was fundamentally incompatible with New Zealand’s constitutional and legal arrangements.

She was troubled that UNDRIP’s 46 articles (see HERE) confer special rights on indigenous people that give them a higher status than all other citizens.

These include the right to “self-determination” and separate self-rule, through their own political, economic, legal, social and cultural systems and separate education, health and housing (all funded by the state), entitlement to virtually all of New Zealand’s land and resources, and the right of veto over the actions of the Government.

The definition of “indigenous” person under Article 33 is a matter of self-identification:

“Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.”

In an address to the United Nations on 13 September 2007, Rosemary Banks, New Zealand’s Permanent Representative to the United Nations, outlined why New Zealand would not sign the Declaration.

She said:

“In particular, four provisions in the Declaration are fundamentally incompatible with New Zealand’s constitutional and legal arrangements, the Treaty of Waitangi, and the principle of governing for the good of all our citizens. “These are Article 26 on lands and resources, Article 28 on redress, and Articles 19 and 32 on a right of veto over the State.”

New Zealand’s objections to Article 26, for example,

“…implies that indigenous peoples have rights that others do not have.”

And:

“New Zealand takes international human rights and our international human rights obligations seriously. But we are unable to support a text that includes provisions that are so fundamentally incompatible with our democratic processes, our legislation and our constitutional arrangements. These provisions are all discriminatory in the New Zealand context.”

A few years later John Key’s National-led Government, influenced by the politicking required to nurture and sustain its coalition arrangement with the Māori Party, over-ruled the Crown Law advice given to Clark.

On April 20 2010, Māori Affairs Minister Pita Sharples (co-leader of the Māori Party) announced to the United Nations in New York that New Zealand would support UNDRIP.

Prime Minister John Key that day surprised the New Zealand public – who had not been consulted – by announcing the signing.

He said the declaration:

• acknowledges that Māori hold a special status as tangata whenua, the indigenous people of New Zealand and have an interest in all policy and legislative matters;

• affirms New Zealand’s commitment to the common objectives of the declaration and the Treaty of Waitangi; and

• reaffirms the legal and constitutional frameworks that underpin New Zealand’s legal system, noting that those existing frameworks define the bounds of New Zealand’s engagement with the declaration.

Much was made of the declaration being nothing more than aspirational.

Key’s press statement described it as a statement by the UN General Assembly about matters it considers to be significant.

“A Declaration is an expression of aspiration. Unlike a treaty or covenant, a Declaration is not legally binding.”

Explaining his Government’s decision, Key acknowledged that previous governments had considered certain elements of the Declaration, particularly principles advocating prior and informed consent of indigenous peoples in decision-making and full reparation or restitution for wrongfully taken land and resources, to be inconsistent with New Zealand’s domestic arrangements and democratic processes.

“This Government has reviewed New Zealand’s position on the Declaration. The statement of support acknowledges these areas are difficult and challenging but notes the aspirational spirit of the Declaration and affirms to continually progress these, alongside Māori, within the current legal and constitutional frameworks of New Zealand.”

But the public were kept in the dark about Sharples flying to New York with officials and selected media to sign the agreement.

New Zealand First’s leader Winston Peters at that time expressed concerns about the Declaration:

“The United Nations Indigenous Peoples Declaration was signed in the dead of night at the UN in New York. The people were never consulted. This declaration says that in a dispute over New Zealand laws, some New Zealanders’ rights over-ride the rights of others. And in time, this is going to be written into our laws. This is the final step on the road to separatism. This is the road to Zimbabwe.”

Labour MPs challenged the Government’s stealth, too.

They included the member for Hauraki-Waikato, Nanaia Mahuta, who reiterated that in 2007 the Labour Government had been unable to sign the declaration.

“We believed that it deserved to receive more than a lip-service approach. In particular, there were inconsistencies between the text and New Zealand’s constitutional and legal framework that would be difficult to overturn while retaining the fabric of what our society is working towards.”

Moreover, she said:

“If the National Government is serious about this declaration and about realising its aspirations, then why has it been signed under a veil of secrecy?”

And:

“… why have New Zealanders been prevented from participating in a debate on an issue that has a profound impact on the future that we see for this country? Why is the Prime Minister not making this announcement in the House?”

But Mahuta also noted how the Government had taken care to recognise that the document

“… is aspirational and non-binding, an approach that should weigh heavily on the efforts of those people who wanted the declaration to be a strong platform for the continued assertion of indigenous rights.”

She said – or forewarned, as things have turned out now she and the Ardern Government are calling the shots – that the declaration deserved to receive more than a lip-service approach.

In his speech to Parliament, ACT Leader and coalition partner Rodney Hide said he was shocked and appalled at the Government commitment.

The signing was a breach of ACT’s “no surprises” agreement with the Government and afforded Māori rights and privileges not enjoyed by other New Zealanders.

But according to Stuff, Key was adamant New Zealand’s endorsement of a declaration on indigenous rights would not change “our fundamental laws or constitution”. Endorsing the declaration was more symbolic than anything else because New Zealand laws took precedence.

As for shrouding the declaration in secrecy, Key said the decision to keep quiet in advance about Sharples’ trip to New York was out of respect for him. He did not want to steal Sharples’ thunder.

That thunder included Sharples telling the UN:

“Māori hold a distinct and special status as the indigenous people, or tangata whenua, of New Zealand. Indigenous rights and indigenous culture are of profound importance to New Zealand and fundamental to our identity as a nation. “A unique feature of our constitutional arrangements is the Treaty of Waitangi, signed by representatives of the Crown and Māori in 1840. It is a founding document of New Zealand and marks the beginning of our rich cultural heritage. “The Treaty establishes a foundation of partnership, mutual respect, co-operation and good faith between Māori and the Crown. It holds great importance in our laws, our constitutional arrangements and the work of successive governments.”

But that was the thin edge of the wedge.

At Waitangi Day in 2011, Sharples took issue with critics who said the declaration was only symbolic and was qualified by being subject to New Zealand domestic law – and so on.

“However, this taniwha will develop over time – as have all the most enduring changes for our people happened, in small steps. Nonetheless, as customary and tikanga jurisprudence develops over time the Declaration will provide another tool for Māori to assert their rights. Our rights as tangata whenua, and first peoples of this land.”

We all know what has happened since then…

This piece was first published at Point of Order is a blog focused on politics and the economy launched by a small team of veteran newspaper reporters who were responsible for much of the content of the authoritative weekly newsletter, TransTasman, before its change of ownership early in 2018. The main writers are Bob Edlin and Ian Templeton.