A “fantastic day”, “excited”, “almost beyond my wildest dreams”: what could Rahui Katene have been talking about in Parliament last Wednesday? A four-to-five-year meander through the constitution. Can you share her glee?
Katene, who joined the Maori party MPs’ caucus in 2008, was disappointed no one else had mentioned that “our co-leader, Pita Sharples, stood alongside the Deputy Prime Minister and announced a new phase of debate” on the constitution.
Deputy Prime Minister? Aren’t the documents and practices that assign power and say how it is to be used central to our democracy and thus a matter for the Prime Minister?
First, the Prime Minister is a royalist and even though the republic is not explicitly an item for the review, it will be unavoidable. He has exhumed knighthoods, Privy Council posts and Queen’s counsels.
Second, an even bigger unavoidable topic is the place of the Treaty of Waitangi. That became obvious at a two-day conference in 2000 and the Treaty has grown in public life since then.
The Maori party is clear what it wants. A party fact sheet issued on Wednesday states that “the ultimate goal for the Maori party is to ensure that the Treaty of Waitangi is given proper recognition and the constitutional arrangements allow for full engagement and participation by tangata whenua”.
That was why it got the constitutional review written into its support agreement with National in 2008. It is also why the two parties have taken two years to agree an arrangement. (Rodney Hide, meanwhile, last week put up to the cabinet his planned review of local councils’ constitutional place.)
The Westminster-tradition view of the Treaty is that it transferred power from iwi and hapu to Britain and therefore has legal force only to the extent that legislation explicitly says so or the courts do or a practice develops into a convention. Conventions are important in our constitution: for example, it is by convention that the Governor-General acts on the Prime Minister’s “advice” and may depart from that only in a crisis and even then at peril to the office.
All three elements have been in play over the past 35 years to give the Treaty — once ruled a “nullity” — an informal influence far beyond its formal legal reach.
The traditional Maori view of the Treaty is different. It is that it didn’t just enable constitutional Westminster-type government, initially from Britain, but also over-arches it because, as the Appeal Court stated in 1987, it is a “partnership” between iwi/hapu and the mythical “Crown” (in reality the government).
Before becoming Deputy Solicitor-General, Matthew Palmer wrote a book, cited by Katene last Wednesday, arguing for a new court with binding jurisdiction on whether actions and laws “abide by” the Treaty’s “relational” meaning. Others have argued for embedding the Treaty in what the cabinet paper calls a “written constitution” — a document on which, as in the United States, the Supreme Court would have the ultimate say, not Parliament. That is a very big step. But Katene called the lack of such court oversight an “injustice”.
The Treaty is the nub of the review — and the most sensitive item. Many, including many Nationalists, expect the Treaty to biodegrade once “grievances” are settled. Having the Prime Minister co-announce the review with Sharples might have stretched party unity.
He has already stretched loyalty by agreeing to a flag, the Declaration of the Rights of Indigenous Peoples and changes to foreshore/seabed law and had hastily to can proposals to vest Te Urewera in Tuhoe.
There is, as MP Allan Peachey observed, considerable conservative disquiet over the Marine and Coastal Areas (Takutai Moana) Bill (which now is also dividing the Maori party, iwi and Parliament). Out in the sticks there is unease about Treaty settlements imposing co-governance and/or co-management of waterways.
It is unsurprising, therefore, that the National party has been super-cautious. English and Sharples will consult with a cross-party reference group and report to the cabinet in six months refining the terms of reference and setting up an advisory panel. Then all goes dead until after next year’s election. The panel — headed by two co-chairs, one likely to be appointed by an iwi leaders group formed to oversee Maori consultation — then has two years to “engage” with various publics and report by end-2013, to which the government must respond in six months.
No change is to be made without broad cross-party agreement in Parliament and a referendum, which the cabinet paper says is “in keeping with New Zealand’s constitutional history”. (Oh, yeah? You remember voting on abolishing appeals to the Privy Council in 2003, don’t you?)
That referendum could be at the election in 2014 but also could easily drift comfortably past that deadline.
What will come of it all? Probably not much unless the ninth floor gives a lead. Meantime practise your bows for King William and Queen Kate.