A New Dark Stage in NZ’s Constitutional History.

Opinion by David Round

I am afraid we are entering a new dark stage in our constitutional history. 

I daresay that, even if you live in Canterbury, you have never heard of the Canterbury Regional Council (Ngai Tahu Representation) Bill, currently before Parliament and just about to be considered by the Maori Affairs Select Committee. You cannot be blamed for that. 

Although this bill has been promoted by the council itself, which is ‘proud’ of it ~ Jenny Hughey, the Council’s chairwoman, is ‘thrilled’ that it has got as far as a first reading ~ and although, needless to say, the Council has ‘engaged with Ngai Tahu’ on this subject, it decided that consultation with anyone else in Canterbury was unnecessary. 

Allegedly, this is because we ordinary people would all have our chance to make submissions to the Select Committee. The Select Committee was the ‘pinnacle of the consultation process’, giving ‘everyone in New Zealand the opportunity to express their views’. And, very fortunately, as the Council also noted, there was no legal requirement for councils to engage in formal consultation. 

(The Select Committee, incidentally, has decided, quite contrary to usual practice, and in the middle of a Covid emergency, that it will nevertheless not accept e-mail submissions. Some pinnacle!) 

And so there has only been the barest modicum of public notification. There was a media release, way back in August last year, and notices in the public notices sections of newspapers, which of course no-one reads. Who even gets a daily newspaper these days? The bill was also on the Council’s website until October last year, and if you cared to pop in to a Council office, and knew what you were looking for, you could have even read a hard copy.

Vapid Platitudes

Big deal. The regional council regularly wastes our money by sending out a ‘newsletter’ full of trite bromides and meaningless photo opportunities, and I do not recall ever having seen anything about this bill in those publications. Ms Hughey, the Council chair, has a regular spot in various free farming newspapers delivered to most country letterboxes, where every month she delivers vapid platitudes about the importance of a healthy environment.  I cannot recall ever seeing anything about this bill there either. The Council has done the bare minimum of public notification it thought it could get away with, and we all know the reason why. The Council knew perfectly well that if they did ask the public the public would say no. So they did not ask the public. This is nothing but treachery. 

This is, after all, a bill which proposes to reduce democratic representation on a regional council by adding unelected members appointed by a large and influential hard-headed business corporation.  The value of the votes of ordinary citizens is thereby reduced, and more power is handed over to the corporation. If that is not worthy of public consultation, then nothing is.

The bill does not, incidentally, even allow for the election of these Ngai Tahu members by Ngai Tahu themselves. The representatives are not elected, they are appointed by TRONT ~ Ngai Tahu head office. Bear in mind, also, that even down here in the south, there are more non-Ngai Tahu Maori than there are Ngai Tahu. These Maori, like all non-Maori, are also having the value of their votes reduced. 

But set aside, for a moment, the outrageous racism and tribalism of this proposal. It is also environmentally outrageous. Ngai Tahu is now a major player in the Canterbury economy. Over the years, of course, it has applied to the regional council for all manner of resource consents, and on occasion those applications, sometimes controversial applications, have even been declined! Yet the regional council, charged with the environmental oversight of the region, proposes giving seats on the council itself ~ on the law- and decision-making body ~ to this private business interest group! Imagine if the bill proposed giving special seats to farmers, say, or associations of manufacturers or employers, or environmentalists. What an outcry there would be! So how is this situation different? 

National Government Takeover

This sort of thing has been tried before, of course. In 2010 the then National government abolished all democratic representation on the Canterbury Regional Council, replacing all the councillors with appointed commissioners. That disgraceful law was made, to put it bluntly, to ensure that irrigation-thirsty Canterbury farmers, converting the plains to dairying at a rate of knots, were not impeded by anything as silly as environmental regulation. There was outrage then. The then Labour MP for Christchurch Central described that bill as a ‘constitutional outrage on a whole number of levels’ which would ‘disenfranchise the voters of Canterbury’. The Greens were outraged also. Eugenie Sage, later Minister for Conservation, and today still a Green MP, was one of the dismissed regional councillors. She was very cross. I have not yet heard her views on this current bill. I certainly would not like to think that Labour and the Greens would be guilty of hypocrisy. But time will tell. 

There are several things the proponents of this bill are forgetting. One is the clear statement in the Treaty of Waitangi ~ a ‘principle’, surely, if ever there were one ~ that thereafter Maori would possess all the rights and privileges of British subjects. In other words, they would be British subjects, equal under the law with all other New Zealanders. Equal citizens have equal voting rights and electoral representation.

We also seem to have forgotten that in 1998 there was a full and final settlement of the Ngai Tahu claim, and that after that full and final settlement Ngai Tahu were supposed to have no further claims to special treatment. That was the promise made at the time, by great luminaries in both the Labour and National parties ~ that after these settlements we would all be able to put the past behind us and move forward as one nation. I did not believe this at the time.  I considered that these politicians who said that were either fools or liars, and very possibly both. I derive only the grimmest of pleasures by being proven correct. 

But the claim is now being made that because the 1998 settlement mentioned Ngai Tahu’s  ‘special position’ in the south, and gave it seats on Conservation Boards and the Conservation Authority, that essentially gives the tribe a blank cheque to make further claims, which would be further ways of recognising that ‘special position’. These claims, we are now informed by a council that should be defending our and its liberties, even extend as far as the alteration of fundamental democratic  representation. Doubtless in due course we will discover they also involve claims on other things ~ money, resource consents, anything really. But one thing at a time.    

Simple and Blunt

The Attorney–General, although recognising that the bill ‘could be seen to draw distinctions on the basis of race or ethnic origins’ ~ yes, really! ~ has nevertheless certified that the bill does not offend against our human rights legislation. The paragraph is perhaps worth quoting in full:

‘9. Notwithstanding [that the bill could be seen to draw racial or ethnic distinctions], the extent to which the distinctions reflect the status of Maori as the Crown’s Treaty partner, and the Crown’s duties under Te Tiriti o Waitangi, we do not consider any other group is in a comparable position.’

So there you have it. As simple and blunt as that. The law forbids racial discrimination, but as long as any discrimination is in favour of Maori it is all right, because of the Treaty. No-one else is in a comparable position. The fact that the Treaty promises equality before the law is utterly ignored. The Court of Appeal, in its otherwise deplorable big 1987 judgment on Treaty principles, at least considered that Treaty principles also obliged Maori to respect the right of the Crown to govern and make laws. But there is no consideration of that principle either. In one sentence the Attorney General simply says that because of the Treaty, pro-Maori racial discrimination is entirely acceptable, even on so fundamental a matter as voting in elections.  

This just goes to show, once again, what a meaningless piece of pious liberal posturing the ‘Bill of Rights Act’ is. It can be twisted by any judge or official to come to absolutely any desired result.

Quite apart from all of these racial matters, there is another completely different reason why this bill is so objectionable. One of the most ancient principles of our constitution is that there should be ‘no taxation without representation’. We know that best as the slogan of the American revolutionaries who threw off the yoke of the Crown, but the origins of the principle are far earlier, now lost in the mists of the Middle Ages.  This bill, certainly, does not completely abolish democratic representation on the Council ~ although once the principle is established that Ngai Tahu are entitled to special appointed seats, there is no reason why they should not demand more seats in future. The Attorney- General, after all, has left that open as a possibility. Why stop at two seats? Why not half the total number, if the Treaty is a ‘partnership’? But this bill certainly weakens democratic representation. In future, Canterbury citizens would be paying their rates ~ ‘taxation’ ~ not to a democratically elected council, but to one significantly influenced by a private racially defined business and development corporation. This is an utterly unacceptable situation. The only conceivable response would be a rates strike by Canterbury citizens. Why should we be taxed to serve Ngai Tahu? 

Corruption

There is a deep corruption here. I do not necessarily mean corruption in the legal sense, although that will undoubtedly arrive in future. Ngai Tahu, an applicant for resource consents, and who, like everyone else, will be affected by regional council plans, will have a great deal of influence on resource consent decisions and the contents of those plans. Of course there will be corrupt deals. Nothing is more certain. It is incredible that our rulers fail to recognise the gigantic scope for abuse of power in this proposal. Perhaps they do, and are looking forward to it. If they do see it, and keep quiet about it, they are rogues; if they do not see it, they are fools. I see no third possibility.

But that aside, there is already a moral corruption among our ruling class. Our elected representatives, on councils and in parliament itself, and the whole army of overpaid bureaucrats in comfortable offices who really make the rules most of the time ~ these people are become so arrogant, so full of themselves, so certain of their own superior virtue, so certain even of their basic competence, that they do not care at all what we think or want. We feature in their plans only as obstacles to be overcome. If we were in the United States of America they would describe us contemptuously as the ‘flyover people’ ~ the people whom the movers and shakers fly over as they jet between the big cities of the East Coast and California. They despise us. They should not be surprised when we return the compliment.

Perhaps, in the case of some of our dimmer elected representatives, we could charitably explain their political position by concluding that they are braindead. But that is nowhere near the complete explanation. The people we have put in charge have forgotten their duty. Regardless of whether this particular bill is passed or not, that is clearly already the attitude of the people in charge of the Canterbury Regional Council, and it is also very clearly the attitude of most MPs and the Wellington bureaucracy. 

Emperor’s Power

Edward Gibbon described the constitution of the Byzantine Empire, where the Emperor’s word was law and where there were no theoretical limits on his power, as ‘autocracy tempered by assassination’. The emperor could do absolutely anything he wanted to; but if he went too far, someone might kill him. The principle, though, is one of wider application. Whenever any tyrant cannot be removed by peaceful means, violence is the only alternative left to citizens. It is no use voting one lot out, if the next lot of liars is going to be just as bad. And the National Party has been just as bad, if not worse, in this respect than Labour has been. It was National, for the shallowest of motives, which signed us up to the United Nations Declaration on the Rights of Indigenous Peoples, after Helen Clarke refused to, and it was National which repealed Labour’s pretty reasonable foreshore and seabed legislation to replace it with the current appalling situation. And now Chris Luxon is learning Te Reo….I have absolutely no faith in any of them, and neither should you.

I will tell you what I think of most of these politicians and bureaucrats. As individuals, they may be nice enough; but collectively, they are lying, treacherous, arrogant, power-hungry, anti-democratic, environmentally heedless racist scum. If we continue to be stupid enough to vote for them we have no-one to blame but ourselves for the inevitable consequences. 

There is absolutely no excuse for this legislation. Indeed, Ngai Tahu already has two representatives who sit with the Council to advise it, but who at present, quite rightly, do not have votes. What more can possibly be needed? If Parliament should be so foolish and wicked as to pass this bill into law, it will mark a significant and terrible step in our constitutional history. It will definitively mark the stage where parliament and the ruling elite have declared war on the people. It will forfeit not just public respect for Parliament but also that vital sense of public obligation to obey its laws. Civil disobedience will be the inevitable consequence. What else is left?

It has often been observed that where the United States of America goes today, we go tomorrow. Our ruling class expresses concern about the decline in respect for allegedly ‘democratic’ institutions and the rise of ‘populists’. But Mr Trump, whatever his faults, appeared because the American people had been betrayed by their corrupt ruling class. His promise, however inept and badly kept, was to ‘drain the swamp’. We are heading in the same direction. We have our own swamp. New Zealand politicians who want to know the reason for the rise of such populism here need only look in the mirror. 

Footnote: David Round is a sixth generation South Islander. He teaches law at the University of Canterbury. He has a lifelong love of nature and the outdoors, and has long been involved in conservation issues. He is a former national president of Federated Mountain Clubs. He stood for Parliament in 2005 and was almost elected. He has written substantially on Treaty issues. He lives on Banks Peninsula.