Photo: Photos: Alexander Turnbull Library / Museum of New Zealand Te Papa Tongarewa / RNZ
In the talks to form a new government, the ACT Party has said it will argue for a referendum on the Treaty of Waitangi. There are three big objections to the idea.
When David Seymour took centre stage at his party's election campaign launch, shrouded in a cloud of dry-ice, he vowed the ACT Party would end co-governance and 'division by race'. He further cemented his commitment by proposing a referendum on the Treaty of Waitangi's principles. Supporters loved it.
"This country deserves a say on what the Treaty means. It's everybody's country and everybody should have a say in how its constitutional arrangements evolve and develop," Seymour said.
Now, with a chance to negotiate a place in the new government, Seymour says the referendum idea is on the table.
But it has issues. Activists are very likely to lead disruption and protest against the idea; it is politically unattractive to National; and, even if it went forward, there would be legal complications.
What ACT wants: The referendum idea
The ACT Party is vehemently opposed to co-governance and wants to reshape the nation's constitutional framework. It suggests a 'Treaty Principles Act' which would override the Treaty of Waitangi and its implications in other legislation and the way laws are interpreted in court.
It would define the principles of the Treaty as:
1. All citizens of New Zealand have the same political rights and duties
2. All political authority comes from the people by democratic means including universal suffrage, regular and free elections with a secret ballot
3. New Zealand is a multi-ethnic liberal democracy where discrimination based on ethnicity is illegal
The public would vote for or against the act becoming law, similar to the End of Life Choice Act referendum in 2020.
Seymour says his party has a problem with the way the courts and government have been interpreting the Treaty.
"We have a right to debate whether our future lies with co-government and different rights based on ancestry, or whether we want to be a modern, multi-ethnic liberal democracy where every New Zealander has the same rights," he says, in a written statement.
"Where will New Zealand be in 50 years' time if the current path continues, where Kiwis are offered different rights based on their ancestry?"
ACT has consistently said the Treaty is a taonga and that its principles provide the basis for a modern liberal democracy, he says. But the government is sovereign, its job is to protect property rights, and we all have equal rights and duties.
"ACT says those principles should be codified in legislation and New Zealanders should be allowed to vote on them, rather than allowing the courts to surreptitiously change our constitution.
"By enshrining the Treaty's principles, properly understood, in our constitutional settings, ACT would promote the Treaty as it was actually signed, not the divisive version invented by judges and academics."
Redefining the principles of the Treaty would be "incredibly unsettling for the law," says Dr Carwyn Jones Photo:
The legal objection
The interpretations of the Treaty that have been introduced to law by the courts represent one of the significant challenges to the ACT Party plan.
Currently the Treaty of Waitangi has two texts. Te Tiriti o Waitangi, the Māori version, and the Treaty of Waitangi, the English version. The Māori version is not an exact translation of the English. There are major differences in the meaning of each version.
In law, those differences are addressed by referring to the 'principles' of the Treaty, or the core concepts that underpin both texts. ACT's plan would re-define every existing reference to those principles with its own suggested meanings.
Dr Carwyn Jones, Pukenga Matua of the Ahunga Tikanga programme at Te Wananga o Raukawa and honorary associate Professor of Māori studies at Te Herenga Waka, says that would be very unsettling to the law.
"There are lots of pieces of legislation which refer to the principles. And we've got lots of court cases and Waitangi Tribunal Reports which have elaborated on what those principles are, and how they ought to apply," Jones says.
"That would all be upset if there was a new definition of what the principles would be. That would be incredibly unsettling for the law, it would create a whole lot of uncertainty.
"It would create a whole lot of work for lawyers, and not much benefit for anyone."
The principles are currently used as a framework for how Māori and the Crown relate to each other, Jones says. Redefining the principles might mean local councils and the government did not have to consult with iwi and hapu Māori over issues directly affecting them.
Jones questions the wisdom of subjecting such a critical matter to a referendum.
"We're talking about human rights and those are not questions which are generally determined by whether the majority agree that human rights should be upheld."
Associate Professor Leonie Pihama Photo: Kelly Hodel / Fairfax NZ
Taranaki-based researcher Leonie Pihama says the proposal would be a "fundamental breach of the Treaty in and of itself, by a government".
"Te Tiriti o Waitangi is the foundational way that our tūpuna forged relationships with those people who came after.
"Our tūpuna have honoured that and we will continue to honour it irrespective of the failure of successive governments, as we have for over 180 years. We have continued to honour it, irrespective of governments ability to honour it themselves."
For all of that, the ACT proposal is legally possible, Jones says.
"There isn't a directly independently, legally enforceable mechanism to give affect to Te Tiriti so that's why the Treaty principles are used … as a means of providing enforceable adherence to at least the principles," he says.
"So while it [the referendum] would certainly be in breach of the Treaty I think it would still be legal in the sense that there's no kind of particular requirement that a referendum be consistent with Treaty principles in and of itself."
The social objection
Race-related matters and discussion on the Treaty of Waitangi have consistently been contentious. There were waves of outrage and protests during the 2004 Foreshore and Seabed controversy, which showed how such issues can galvanise passionate opposition. In that instance, opponents of the legislation staged a 13-day hikoi from Northland to the steps of Parliament in Wellington.
Michael Belgrave, professor of history at Massey University, points to an even more contentious moment in our history as a parallel if the referendum were to go ahead.
"This is really playing with fire," Belgrave says.
"We could have as contentious an event as the 1981 Springbok tour, if this was to go ahead. It would divide the country extremely seriously. And it wouldn't just be Māori against Pākehā.
"I think the Springbok tour is probably the nearest comparison that we might have if we're looking back to a time of dramatic division and confrontation in the country."
Like Pihama, he sees the proposal as completely at odds with the Treaty itself.
"It turns the Treaty down to one simple principle. 'We are all equal. We are all citizens of a sovereign, Queen Victoria, King Charles,' whoever that might be, and nothing else matters in terms of the Treaty," Belgrave says.
But that is a complete denial of our history, he says.
"The Treaty has always been about trying to work out where equality lies, but also recognising that Māori have a right to be Māori. Have a right to be equal in ways that are different from everyone else in this country."
Professor Michael Belgrave Photo: supplied Massey University
He urges caution about threats, or saying "this is going to open the door to violence".
"If we look at our history, Māori have almost invariably used legal and non-violent means to resist, to accommodate, and to have their voices heard. That's been one of the strongest features of the Treaty heritage. Violence has often been taken to Māori, it's very rarely been embraced, without very severe provocation. Maōri have used petitions, political parties, commissions of inquiry, like the Waitangi Tribunal, those are the vehicles of protest."
Pihama suggests non-participation in a referendum as a vehicle for protest.
"I think any referendum forms that come out should be symbolically burnt in ahikā on all of our maunga," she says.
"I think we just would need to assert ourselves and assert the fact that we will not participate and take a very strong rangatiratanga and position and no Māori should vote in a referendum on the Treaty, not one."
Christopher Finlayson, who was Minister for Treaty of Waitangi Negotiations under the last National-led Government, says whilst he doesn't think there is any problem with ACT raising questions on what the Treaty principles are, he doesn't agree with a referendum on the matter.
"There is a danger that the crazies could crawl out of the woodwork and use inflammatory language that is not the New Zealand way of doing things and I don't want to see us becoming utterly polarised like places like the United States," Finlayson says.
A referendum would only provide a platform for extremists.
"Some of those people who have been going around the country moaning about co-governance: One, they don't know what they are talking about; and two, they are people that I've always described as the sour right.
"They don't like change, they dream of a world that never was and never could be, they ignore the facts unless it suits them, they are utterly miserable."
Christopher Finlayson Photo: Nicola Edmonds
In almost a decade in charge of Treaty settlements, Finlayson oversaw an unprecedented 59 settlements.
He says the Treaty can be acceptable for all New Zealanders.
"To me, the central aspect of the Treaty is respect for property rights and that's where I think a lot of things went wrong because indigenous property rights were not respected."
But there should be a public conversation about Te Tiriti and co-governance, he says.
"There needs to be a discussion about that, and people need to be able to raise these issues, without being accused of being racist. At the same time, you have to be able to express yourself in moderate terms, not inflammatory terms.
"I think we must be hypersensitive, people are allowed to raise questions without being labelled by people who are trying to shut down a debate."
The political objection
Political sensitivity might be the ultimate obstacle to the plan.
According to a Taxpayers' Union-Curia poll, 45 percent support a referendum, 25 percent are opposed, and 30 percent were unsure.
But National Party leader Christopher Luxon, the incoming Prime Minister, appears wary of anything very disruptive in race relations. During the election campaign, he told the Hui the idea was "divisive and not helpful".
Belgrave says a referendum could seriously damage the reputation of Luxon's government.
"This would unite not just Māori, it would unite a very substantial proportion of the country against the proposal and against the government. I honestly don't think that, with that in mind, National would be willing to take that risk."
It would represent a rare departure from the mostly bipartisan approach to race relations and the application of the Treaty of Waitangi since the 1980s, he says.
"Only in that brief Don Brash period was that threatened. And that consensus has actually worked well. It's a consensus where National has often led the field ahead of Labour."
While not decisive to the numbers in any vote in Parliament on a referendum, the resurgent Te Pāti Māori is also a consideration.
Te Pāti Māori secured four electorate seats on election night, with the potential for one or even two more when special votes are finalised. Alongside the return of Te Pāti Māori co-leaders Debbie Ngarewa-Packer and Rawiri Waititi, 21-year-old Hana-Rawhiti Maipi-Clarke and Takuta Ferris will add new dynamics to Parliament. They would almost certainly make the passage of ACT's plan tougher.
Whether or not the referendum survives the secretive talks to form a government, Pihama has a plea.
New Zealanders, she says, have a lot to learn about the Treaty of Waitangi. This is currently happening in our schools, with the implementation of the new history curriculum. But it's just a start.
"We do need to have a more informed population," she says.
