November 2024
SUBMISSION ON THE TREATY OF WAITANGI PRINCIPLES BILL
To the Honourable Chair and Members of the Justice Select Committee
This is the personal submission of Anthony Jon Simpson, of 21/3 Aro Street Wellington, writer and political, social and cultural commentator. I direct my submission to the principles enunciated in the proposed legislation and in particular to Principles 1 & 2 which can be reconciled neither with one another nor with the principles contained in the original texts of the Treaty/ te Tiriti itself.
I consider I have a background which enables me to speak with some authority on this proposed legislation on a number of bases.
I am a published author on New Zealand historical matters, writing under the name of Tony Simpson. I have academic post graduate tertiary qualifications in history and political science, and have some twenty book titles in the national bibliography. Over the last four decades I have published widely in a range of media. Quite a lot of this publication deals with historical, cultural, political, and social matters to do with the relationship between Maori and pakeha in this country and includes two full books. These are: Te Riri Pakeha: the White Man’s Anger (1980), which is a factual narrative account of how Maori land holdings were reduced from sixty six million acres to about three million between 1840, when the Treaty of Waitangi/ Te Tiriti o Waitangi was signed between the British Crown and some Maori rangatira, and 1970; and Before Hobson, (2015), an analysis of the historical and political context within which the 1840 treaty was created and signed.
In addition, the larger part of my professional career was in public affairs. More particularly I have worked as a journalist and producer in public broadcasting, as a senior advocate in public sector industrial matters both here and in Whitehall, as a public servant in policy and planning, and for some fifteen years as a member of the staff of a senior politician in our own Parliament. I am therefore well versed in practical political matters and its relationship to our constitution.
During the course of that employment I prepared and implemented a seminar course on te Tiriti familiarisation for staff within the Customs Department where I was then employed as a senior strategic planner, to assist in the implementation of that section of the State Sector Act requiring all public servants to be familiar with the principles guiding awareness of te Tiriti. This was subsequently used by a number of other agencies and organisations, including the Public Service Association of which I was at the time the elected national president.
Maori and pakeha in New Zealand
The relationship between Maori and pakeha is one of the fundamental constitutional relationships of our society and becomes even more significant when it is considered that New Zealand has no written constitution in the usual sense of a fundamental document setting out the essence of our society and its political arrangements. Documents such as te Tiriti therefore have a marked importance in such circumstances, and any legislation which purports to interpret the meanings of such an item should be of great interest to all of those who live in our society. It is also a task which should not be undertaken lightly or without careful consideration and widespread consultation. Quite apart from any other consideration it is cause for some alarm that such consultation has not taken place prior to the creation and introduction of the current Bill, especially with Maori people who consider te Tiriti one of their central taonga.
Why this proposed legislation?
When it first became mooted that we needed to have a law explicating te Tiriti in some way I must admit that I was puzzled. Both the text of te Tiriti itself and the interpretations placed upon it as the need has arisen by the most senior of our legal authorities (one of them, the Waitangi Tribunal, a specialist body in its jurisdiction in such matters) have always seemed to me to require no explication because they are perfectly clear, and although I have searched assiduously throughout the widespread debates which have taken place since, and continue to do so, on this matter, I still cannot identify such a need, although I am open to enlightenment on that score . That suggests to me that the proponents of the Bill have some other purpose or agenda, or are driven by some extraneous consideration, and I would like to suggest what some of these might be and why they are unnecessary or invalid.
A moral panic?
I believe we are dealing here with a moral panic, a concept quite well known to social scientists. Such a phenomenon usually crops up when some public event or series of events occur and people, casting about for an explanation, light upon what seems be the cause, notwithstanding that this may be irrelevant to the matter, and begin loudly demanding that the public authorities do something about it to alleviate the outcomes.
Let me give you an example. You may recall from your pre-school days a nursery tale involving a character called Chicken Lichen who was walking through the woods one day when an acorn fell from a tree and hit him on the head. He immediately assumed that the sky was falling because of this and so he ran about the woods in a panic warning his fellow creatures of the great danger they were in even although there was no cause for alarm. Mr. Licken and those who believed him were exhibiting all the symptoms of a moral panic. If you remember the story you will also know that it ended badly, as moral panics often do.
Such panics are not as uncommon as you might think and also not unusually lead to significant negative consequences. A recent real life example in this country has been provided by the continuing debate over who “owns” the foreshore and seabed. The origins of this particular moral panic lie in an abstruse point of law referred from the Maori Land Appeal Court to the Court of Appeal. A group of business people had sought to set up a fish farm at the top of the South Island but had been opposed by the local iwi on the grounds that this interfered with a traditional or customary right to draw on the same locale for the gathering of kai moana. The point of law was whether or not such a use and access right (not unusual in a range of circumstances for example in the English common law over matters of footpaths, or entitlement to natural light) was applicable in New Zealand law and could be argued here to prevent or limit the proposed fish farm.. The Court of Appeal agreed after some discussion that it probably could be so argued although it would have to be shown that the use and access right in question had been material and fairly continuous since 1840. And so it was sent back to the Maori Land Court to explore the substantive issue, with one of the Judges of Appeal remarking that this set a fairly high bar. The next step should have been the argument of the actual case.
But somewhere along the way someone got it into their head that what had happened was not the resolution of a legal point, but the awarding of the ownership of the foreshore and seabed at large to Maori with the consequent denial of access to pakeha. This was not the case at all but as the American sociologist Talcott Parsons once sagely remarked if people define situations as real then they are liable to be real in their consequences. The uproar that followed caused a serious breach in the governing party and led to the formation of the Maori Party, as well as legislation to make it clear that the seabed belonged to all citizens. The debate continues, some of it apparently to do with the sacred right of New Zealanders to spend their summer holidays at the beach even although that was not at threat, and gave point to the infamous political slogan: “Kiwi Not Iwi” i.e. that the general rights of New Zealand citizens were being sacrificed to the special rights of Maori.
This current Bill is, in my estimation a similar example of an attempt to resolve a problem which does not exist – a pseudo solution, one might say, to a non-problem – because it is predicated on the assumption that there is something unacceptable going on here which is having an undesirable, even alarming, public effect and this needs to be put a stop to. At the extreme end of this lie a number of conspiracy theories which suggest that this is not only undesirable but sinister. There is in my estimation not the slightest evidence that this is so, and to the extent that anything is happening at all the outcome is instead both benign and desirable.
The “privileging” of Maori people
More broadly some of the proponents of this Bill say that current public policies and those enacted over the past four decades in respect of te Tiriti single out Maori people for additional privileges which are not available to the generality of New Zealand citizens. This view is by no means universally held but there is a strand in our national character which says that, no matter what the reason for something, if we can’t all have it then no-one should have it. A moment’s thought makes it clear that this inference is an absurd perversion of egalitarianism, but that doesn’t stop people from holding it as a view.
It is perfectly true of course, that there are policies in place and implemented which give some Maori, mostly through their iwi or hapu some social assistance in one form or another which is not universally available to all citizens. An example might be in the field of medical education which is often raised in this context as if Maori are getting admission to medical school when they don’t meet the required academic standard. For the record this is nonsense; no-one gets into medical school unless they do meet the standard. What it is intended to do is the balance up an ethnic gap in our medical workforce. Those who label this privilege and therefore unacceptable per se might just as well argue that elderly folk should not get a pension when they reach 65 because this privileges older citizens.
But what those who criticize such policies fail to take into account is the historical context in which Maori were progressively stripped on their assets in land by one dubious means or another over the course of more than a century in contradiction of the solemn promises made to the contrary in te Tiriti. This means that as a group within our society they are generally disadvantaged often over several generations in ways that members of the society in general are not. The classic instances are in opportunities for education and employment, and in relation to the crime and health statistics. Current policies are not a form of “privileging” but are designed to redress generations of disadvantage.
If we have pretentions to being an egalitarian society that redress needs to continue whereas the proposed legislation if passed would have the net opposite effect and lead to continued intergenerational disadvantage, and the continuing privileging of the seriously wealthy specifically, and pakeha in general, who have benefitted over time in one way or another from Maori loss of their capital assets.
Why do we need to interpret te Tiriti anyway?
Although the current three clauses of the document of 1840 seem clear enough to me, and I am sure to those who have taken the trouble to read them (which does not I am sorry to say seem to include everyone with views on this matter), I have already remarked that they do not say quite the same thing as between the two languages in which they are couched. I don’t intend to open up that vexed debate about where they differ but will merely point out that what the Crown got in 1840 was not sovereignty but kawanatanga i.e. overall governance, and what Maori retained was tino rangatiratanga which is to say management and control of their own property and affairs. Over the succeeding one hundred and eighty four years these two things have sometimes come into serious collision and the courts have more recently by the application of common sense sorted out what the two concepts have meant in conjunction within the specific context in which they have been increasingly referred for judicial refereeing. It is from such cases that the current legal principles for interpretation of the relationship between the two treaty documents derive. Mostly that works and like most things that work if it isn’t broken then you shouldn’t try to fix it. We don’t need this Bill and the recommendation of the Committee should be, in my view, that it be given burial at sea with the biggest possible splash as soon as possible. Things are, however, never that simple in political affairs.
Enter the ACT and New Zealand First parties
It should be noted that in this instance some commentators have rather cynically suggested that this Bill is not what it seems to be but is all about gaming voting behavour. This is because one should never underestimate the force of nostalgia in politics. The last half century in this country has seen great changes in the way we conduct our public affairs. It is also noticeable that this has not been a welcome development in some quarters, a reaction to significant change which has expressed itself in a number of ways which have also been noted in some other countries. These reactions have not always been rational. The British historian Philip Parker, among others, and drawing on the image of the passage of time as a river, has very recently for instance described it thus:
“The image of history as a river and time as a stream which carries us forwards, is not a novel one. Yet it is a particular conceit of our own times to insist that we can dam this river, stop history, and even wade backwards for a decade or two to some imagined moment when national myths nurtured an idyll of self-contented ease . . . . . We live in an age of anxiety where the simpler the message the more potent its force, and the greater the throng who gather around its standard. Yet history is a complex and unsettling place, full of confusing counter currents, and rip-tides, which is why so many reject other than a stylized version of the past.”
Those who call for the sort of legislation under consideration here, it seems to me, are hankering for a New Zealand in which the sun is always shining, summer holidays are at the family bach at the beach, Keith Holyoake is Prime Minister still, this is the best place in the world to bring up the kiddies, and our economy is prosperous because Britain has not yet joined the European Community. Above all it is a world in which Maori, a musical, happy go lucky people, know their place and do not go about seeking redress for past wrongs which to the extent that they really exist, they should put behind them, or insisting that good plain folk should make themselves familiar with te reo when English will do perfectly well for communications purposes within our society, thank you.
Well, I have bad news for my nostalgic fellow citizens. Not only can we not return to that idyllic land of lost content but there is a suspicion that it never existed in the first place.
That aside some commentators have also rather cynically suggested that ACT which is proposing this legislation, knows that such nostalgia is a fantasy and does not itself actually believe it is needed, but thinks it has identified a source of potential votes to be had by pandering to such hankerings (currently mostly garnered by New Zealand First, and to a minor degree by National and even some Labour supporters), and the proposed legislation is driven by the belief that such a vote can be corralled to the ACT party’s advantage, and away from their political competitors, especially on the Right, through the Bill.
If these commentators are right and this is the real motivation then it is in my view a serious abuse of the parliamentary process. But putting that consideration aside, I hope the cynics are wrong because I think that as a people we are better than that. For myself I am with the late King Tuheitia who invited us to take a deep breath, to calm down, and to look to our unity and the things we can achieve together going forward.
I reiterate: we do not need this legislation and in my submission it should be dropped from the Order Paper forthwith, to clear the way for dealing with a number of far more significant matters, such as the persistence of child poverty for which there is no excuse in what is a wealthy country, or domestic violence and white collar crime, both of which are on the increase according to the latest figures, and which need to be the subject of parliamentary consideration ahead of moral panics of no substance. I invite the Committee to find accordingly.
Tony Simpson
November 2024