Since this government, at the invitation of its coalition partner, has opened the door to a “constitutional conversation” that is rapidly emerging as a Treatyist monologue, I thought it might be interesting to post my on-the-post report from the last time a government set out to have the Treaty of Waitangi incorporated in a written constitution—back in early 2000, in the first months of the new Helen Clark Government.
Curiously, back then, all the usual Treatyist suspects were agin’ incorporation since, they said, it would “confine” the Treaty. I invite you to consider what’s changed since then … 1
The Hooey From Helengrad
(originally written for The Free Radical magazine, 2000)
In almost the first breath of her maiden speech, new Attorney General Margaret Wilson boasts she will amend this country's constitutional arrangements. With almost the first breath of this new government a debate is organised in parliament to discuss 'Building a Constitution.' Can any one doubt that these two events are linked?
Whatever the reason for them being gathered there in the Parliament Buildings for this auspicious yet hastily-assembled event— and many confessed to being more than a trifle unsure themselves what was afoot— 117 official 'invitees' four Maori gate-crashers and your lonely reporter took part in the conference. Wilson's former employer, the University of Political Correctness at Waikato, was itself well represented at the hui, as were other 'leading academics' such as Jane Kelsey, 'respected jurists' such as Eddie Durie, enough former Ministers, Prime Ministers and Governors General to form a faded sort of portrait gallery, along with tangata whenua with “real mana” such as lawyers Moana Jackson and Annette Sykes, and councillor and gate-crasher Atareta Poananga.
The large number of brown faces present — not all of them invited — contrasted with the extremely small number of people there who were not sucking off the state tit in some way.
I counted ten. At most.
Outside, a Libertarianz welcoming party including an eight foot high Statue of Liberty greeted invitees. To symbolise Wilson’s intent, liberty was suffocated with a giant condom. Inside, as a reminder of the power a good constitution is supposed to tie up, those attending could contemplate decorative pilaster panels displayed gorgeously rendered 'fasces,' the bundled stick motif adopted by the Romans and used ever since as a symbol of absolute political power. The contrast — to me at least — was striking.
For power was certainly on the agenda, or at least how to dole it out, and liberty was, as we suggested — largely uninvited to proceedings.
There was much criticism of the conference, ranging from Professor Jon Jensen, who called it a 'covert Waitangi plot'; to David Round: "If these overpaid mischief makers are allowed to drag our constitution off in their direction then New Zealand is finally stuffed"; to Roger Kerr: "If it ain't broke, then don't fix it"; to Annette Sykes: It's all a colonialist plot to hegemonise Maori (or something similar).
Margaret Wilson's view is that the 'accepted units' of constitution building are cultures, not individuals; that the fiction of “group rights” outweighs the substance of individual rights. The many calls for Maori sovereignty would not have disappointed her, but there were astonishingly few who favoured incorporating the Treaty into any new constitution. Geoffrey Palmer was one exception: "If the treaty is in a written constitution,” he puffed, “then it can protect rights against the legislature." Doug Graham by contrast: "We shouldn't incorporate a law that is so open to misinterpretation." Such incorporation, said Shane Jones, might of course “tie down the Treaty's mana' as a 'sacred covenant”—or as Ngatata Love said "I say what my tikanga is, not the law." (Translation: if law is clear and objective, then witchdoctors won't be paid a fortune to give this week's interpretation of ill-defined concepts like 'taonga.')
Roger Kerr stood athwart Wilson’s would-be juggernaut, arguing: "The basic issue is not brown versus white, but the individual versus the collective." Annette Sykes spoke in response for the brown collective, decrying a world which contrasts the "western 'one' and the non-western 'many.'" She proposed instead a balkanised apartheid state where 'the many' would be controlled by a 'hapu paradigm,' with all power shared amongst hapu leaders, who have a 'fluid' approach to power. No one mentioned Bosnia.
There were outnumbered voices I occasionally agreed with, often with some surprise. Tipene O'Regan: "All states commit theft. A constitution should protect us from that." Tom Lamby, Jonathan Darby, Rod Deane, Peter Shirtcliffe, Stephen Franks, and of course Roger Kerr each in his own way said that many are saying of government 'what are they going to do to us next?' and that consequently there is a need to limit government to stop it stepping on us. We should have one rule of law for all, they affirmed, with liberty and individual rights protected, and contracts upheld. Sykes’s response to this line was an eruption: "If we promote individual rights, then we can forget about our collective responsibility to the unborn"! Moana Jackson told us all that property rights are a myth, dreamed up and used to subjugate Maori. No one mentioned Zimbabwe, but Simon Upton at that point leapt to his pen, no doubt excited to hear an echo of his own previously expressed notion that rights are merely 'social constructs.'
A similar view of rights wasn't the only thing shared by these two — Upton spent the afternoon enthusiastically excavating his nasal cavity while wiping his trophies on his seat. Occupying that seat later on was Moana Jackson, gripping the sides fiercely as he no doubt treasured the many things he now shared unwittingly with Simon.
The most heated session took place over the issue of local government. Unsurprisingly, the head of Local Government Ross Jansen came out strongly in favour of bigger local government. Kerr and Franks came out strongly against, the latter describing Jansen's proposals as "a breathtaking crystallisation of the level of naivety that characterises much of this conference — and if that gives offence, I intend it!" It did give offence, and he was drowned out by the Jansenists. No one mentioned Adrian Chisholm, but by then no one could pretend they didn't know how big local government had smacked this man, because Chisholm was there thrusting into as many hands as he could shake copies of Deborah Coddington's Free Radical story showing what Auckland’s unrestrained council officers had done to him.
But in the end there was neither heat, nor light on display at the Hooey. Just mush. The overall impression of the event, as one participant said, was that it was not actually a debate at all – merely lots of people talking past each other. There was an aimlessness to the whole affair, a sort of purposeless action that suggested the purpose itself was contained somewhere else; that what we were seeing was a giant trial balloon, a test to see how well the issue would go over.
It did not appear to go over well, Clark conceding at the conclusion "that we're acting in the absence of any compelling demand to do anything".
Let us maintain our vigilance.
This post originally appeared in issue 41 of The Free Radical magazine, 2000. It has been lightly revised.
PS: If enough of you are interested, I’ll pull out what I called “The Speech They Didn’t Want to Hear” that I tried to deliver on the day. Naturally however, they didn’t want to hear it.
* * * * *
1. Mostly, the confident assurance of the Treatyists that under current arrangements, the Treaty will end up confining what one would normally expect of a constitution.