Can’t right past by wronging present & future

The Dunedin City Council has backed tracked on its backing for the collective opposed to the government’s Three Waters plans:

. . . The city’s elected members voted 7-6 yesterday to revoke last month’s decision to join Communities 4 Local Democracy, a collective of more than 30 councils opposed to key aspects of the Government’s Three Waters reform programme.

Mr Hawkins argued joining the group had amounted to the council turning its back on mana whenua, represented by Te Runanga o Otakou and Kati Huirapa ki Puketeraki, who have ancestral links to the area.

This prompted the two runanga to suspend their involvement in the council’s Maori participation working party, which has input into strategies and projects. . . 

The council bowed to the wishes of two runanga.

It has an obligation to consult them but do wishes of runanga trump DCC residents? If the majority of residents want the council to oppose Three Waters, will the council reverse its reversal?

To not do so wouldn’t be democratic and that illustrates the problem with co-governance with which, Richard Prebble says there is no democratic accountability :

. . . With almost no debate, Labour has adopted a radical reinterpretation of the Treaty as a partnership to justify co-governance. With co-governance, there is no democratic accountability when half the power is held by those who do not have to answer to the electorate.

Co-governance was not in Labour’s manifesto. Labour ministers hid from its coalition partner He Puapua – a report that could result in co-governance being extended. Work on this radical document is continuing.

Now Labour has an absolute majority and ministers have put the Treaty as a partnership at the heart of the government. It is paralysing policy. How can Māori be part of both the Crown and the other partner? Who is Willie Jackson representing as the minister in charge of He Puapua? . . 

He’s not representing the growing number of New Zealanders who are growing increasingly concerned about the government’s co-governance ambitions.

We do not need a new Treaty. The Treaty is fine as it was written in 1840. [In the English text version] there are just three articles: “Cede to Her Majesty the Queen of England absolutely and without reservation all the rights and powers of Sovereignty”; “guarantees … the full exclusive and undisturbed possession of their Lands and Estates, Forests, Fisheries and other properties”; and grants “all the Rights and Privileges of British Subjects”.

There is nothing about partnerships or being “a multi-ethnic-liberal democracy”.

As David Lange put it: “Did Queen Victoria for a moment think of forming a partnership with a number of thumb prints and 500 people?”

A few Māori signed the English version. Māori had travelled to Australia and Britain. The preamble meant Māori knew what they were agreeing. Ceding sovereignty to end the bloody musket wars, gaining protection for their property and all the rights of British citizenship was a good deal.

What the Treaty does say is still important today.

Sovereignty was ceded. Sovereignty is indivisible. The Crown is everyone as represented by the executive and the courts.

Property rights are guaranteed.

Citizenship grants the rights from the Magna Carta – no arbitrary taxation and the right to a fair trial with a jury.

Parliament is responsible for the present reinterpretation, and only Parliament can fix it.

Parliament has included in a number of laws the phrase “the principles of the Treaty”, without saying what those principles are. No MP thought that a court might say that a Treaty principle was a partnership. No court has.

If you know what these principles are, please tell me because I have yet to find a definitive answer.

People have seized on a statement by judges that in resolving Waitangi claims, it is a relationship similar to a partnership, in order to claim that partnership is a Treaty principle.

Where Māori have a valid property claim, such as to some of our national parks, then co-governance is a pragmatic solution. It recognises the Māori property interest while maintaining the public interest in preserving the parks.

Labour ministers are now promoting co-governance on the basis that the Treaty is a partnership even where Māori have no property claim. . . 

Co-governance where there is a legitimate property claim is quite different from co-governance where there is none.

Māori interest in having access to health is the same as everyone.

That doesn’t mean that Maori might be able to better address Maori health problems but that’s a matter of services not governance.

As far as water is concerned, Māori only have an ownership interest as ratepayers in the dams, pipes, pumping stations and sewage plants. There is no case for co-governance.

So what is the answer?

In the hearings to appoint Judge Ketanji Brown Jackson to the US Supreme Court, a Senator asked what the solution was when the court misunderstands what Congress intended? The Judge replied that in that case Congress should amend the law to make its intention clear.

We should follow the judge’s advice. Parliament has legislated that courts apply the principles of the Treaty. Parliament should now set out that those principles are what were agreed in 1840.

Instead of a referendum, Act should campaign that Parliament legislate that the principles of the Treaty of Waitangi are those in the Treaty: namely, the Crown has sovereignty, the Crown guarantees property rights and everyone has the same rights of New Zealand citizenship.

When Parliament does that we can again repeat Governor Hobson’s words: “He iwi kotahi tātou: now we are one people”.

There is a problem of course that there are four versions of the Treaty – The English one and the Maori translation of it which are different from the Maori version and the English translation of it.

But regardless of which version is used, there is no doubt that the Crown did not always honour the Treaty. Successive governments have acknowledged that and Treaty settlements have, and are still being, negotiated to compensate for that.

There is no doubt that Maori are over represented in negative statistics and under represented in positive ones for crime, education and health. But co-governance won’t solve that.

There are considerable, well-founded beliefs that all it would do is undermine democracy.

You can’t right past wrongs by wronging the present and future which is what co-governance that moves away from equality under the law, democratic accountability, and democratic institutions and practices based on one person, one vote would do.