28 July 2004 Speech Notes

We are all New Zealanders now

Hon Trevor Mallard: Speech to the Stout Research Centre for NZ Studies, Victoria University, Wellington

Thank you for the invitation to speak to you today. I'd like to briefly outline my role as Co-ordinating Minister, Race Relations, and then move on to a wider discussion about the context of the current race relations debate and the principles of the Treaty of Waitangi.

As Co-ordinating Minister, Race Relations, one of my first tasks is to provide an assurance that government policy and programmes are targeted on the basis of need, not on the basis of race.

I want to make it clear that my role as Co-ordinating Minister, Race Relations, or for that matter as Minister of State Services, is not to act as a constitutional expert or defining authority on all matters relating to the Treaty or race relations. What I am focused on is getting the facts out into the public domain so that New Zealanders can have a reasoned and balanced debate.

Any reasoned debate about race relations requires all of us who participate to understand and reflect on our particular histories in the New Zealand context. That involves considering the place of the Treaty, the nature of Treaty settlements in New Zealand and the rights and needs of all New Zealanders as we go forward in the 21st century.

I want to cover some of my initial thinking on these issues and how this will inform my approach to my responsibilities and the outcomes I want to achieve.

Among the key questions we have to ask ourselves is: “what defines New Zealand in the 21st century?”

How do we build the sort of New Zealand that all reasonable people want to be part of? In my view extremists at both ends of the spectrum don't help us achieve that.

We have processes in place for righting the wrongs of the past. That means sorting things out so we can all move on. As that happens we can build a stronger consensus about what it means to be New Zealanders in what’s going to be our best century yet.

So I see our 21st century as being about perfecting our nationhood, banishing the demons from our past, cheering each other on as New Zealand citizens, and being successful, instead of some people constantly feeling they are always missing out, always left behind.

There has to be frank and open debate on what New Zealand is about, and on the futures we can share together. Partisan and sectional politics on these issues will get us nowhere. People who sand-bag themselves into die-hard positions will not be part of creative and positive solutions.

The National Party has dug itself into a bunker and thinks there’s a race war going on. National is the North Korea of New Zealand politics. They're spreading fear by threatening to go nuclear on race relations. Such a party cannot create a New Zealand that is unified and at peace with itself.

Meanwhile, other people are sitting down and working through the issues like sensible adults, or at least indicating that that is precisely what they would like to do.

The debate about our future is not well served by those who make dangerous generalisations. It is simply irresponsible to make assertions about Maori constantly skiving off to tangi or Maori doctors being less able than their non-Maori counterparts. I am appalled when people show contempt for the spiritual and cultural beliefs of others or dismissively resort to name-calling. Paranoia politics and playing on prejudice will not advance New Zealand one iota.

Nor will race-based politics and race-based policy-delivery. Services must be on the basis of need and not because of a sense of race-based entitlement.

New Zealand also has to get its British imperial past behind it. Maori and Pakeha are both indigenous people to New Zealand now. I regard myself as an indigenous New Zealander - I come from Wainuiomata.

We've left behind a British identity. This has meant that we no longer easily understand the people who tried to tear up the Treaty and went to war with Maori in 1863. Once were Warriors. Once were British.

Indigeneity is about the diversity of ways in which we belong and identify with our country. There are Chinese and Indian New Zealanders who have become deeply indigenous too, just like other kiwis whose forbears come from a huge range of other countries.

Michael King was passionate about New Zealand and about the emergence of a unique New Zealand identity. He rightly pointed out that for most New Zealanders, regardless of their ethnicity, home is here, Aotearoa New Zealand.

He argued that just because one group has been here longer than another does not make its members more New Zealand than later arrivals, nor does it give them the right to exclude others from full participation in national life.

Indigeneity is also about respecting the First Nation or Tangata Whenua in this country, Maori, who after all agreed to the introduction of the British law and government to New Zealand under the Treaty of Waitangi.

Without the trust of Maori in the British government back then, New Zealand as we know it today would not have developed.

Let’s get some facts straight about the Treaty. The Treaty is both bigger and smaller than many people think it is.

First, despite the Treaty having no formal legal status, it has been accorded a kind of constitutional status because it gave legitimacy to the British Crown in New Zealand.

As Professor Philip Joseph has stated, "The disputed status of the Treaty under international law is an historical curiosity that has no bearing upon the Treaty's symbolic importance. Its status under international law counts for little if the promises exchanged in 1840 were the basis on which the British Crown acquired New Zealand." (Constitutional and Administrative Law in New Zealand, p44.).

Second, the New Zealand Government would be dealing with indigenous law issues whether there was a Treaty of Waitangi or not. Australia is proof of that. There were no treaties in Australia, as there were in North America, South Africa and New Zealand, and yet Australians are still facing many of the same debates that we are.

Let’s not blame the Treaty. It is hugely significant but it is not the be-all and end-all, nor the panacea for every challenge we face as a country. We would still have to face the challenges of genuinely redressing Maori grievances, of fully associating Maori with New Zealand nationhood, and of ensuring their fullest participation in our economy and society, regardless of whether we had the Treaty or not.

Third, in many ways the Treaty no longer underwrites what it used to. Maori, when they signed the Treaty, signed up to the British global order which existed at the time. Since then New Zealand has become an independent self-governing country. But the government's duty to look after all its citizens, Maori and Pakeha, equally - as promised by the Treaty - remains.

There are no people on earth who would of their own free will agree to extinguish themselves as an ethnically distinct group and totally surrender control over their communities and culture to others.

That cannot be what New Zealand’s 21st century is about. New Zealanders know that our unity as a nation can only be achieved by respecting and admitting diversity and difference.

Today's backward-looking National Party, stalled in the 19th, or perhaps the 18th century, are the inheritors of the original assimilation project. It is hard to see what else they can mean. They are the successors of the Victorian colonialists who wreaked havoc in so many countries.

Winston Peters was more correct than he may have intended when he described Don Brash as a colonial tea planter.

So how do we make sense of the Treaty?

The two texts of the Treaty have led to different understandings. Because of the need to apply the Treaty to present-day circumstances and issues, the “principles” of the Treaty have been referred to by the courts and in legislation, rather than the text of the Treaty itself.

Treaty principles interpret the Treaty as a whole; its intention and its spirit. Some commentators argue that it is the spirit of the Treaty that matters most, overriding the differences in the texts.

Lord Woolf, in the Broadcasting Assets case in 1994 described Treaty principles as “the underlying mutual obligations and responsibilities the Treaty places on the parties. They reflect the intention of the Treaty as a whole and include, but are not confined to, the express terms of the Treaty.”

So what are these principles that we keep referring to?

In order to define the principles of the Treaty we must look primarily to judgments from our courts and to some of the reports of the Waitangi Tribunal, both of which have had to wrestle with these issues.

The Court of Appeal emphasised that there were two core principles. These were “partnership”, in the sense that they referred to a relationship akin to a partnership, and “active protection”. Both the courts and the Waitangi Tribunal have determined that the principle of partnership includes the obligation on both parties to act reasonably, honourably and in good faith.

The principle of active protection has been described as the duty of the Crown to actively protect Maori people in the use of their lands and waters to the fullest extent practicable. This principle arises from the fundamental exchange contained in the Treaty – the cession of sovereignty for the protection of rangatiratanga. This principle is sometimes described as the principle of reciprocity.

A further principle defined by the courts is the principle of redress. It reflects the Crown’s duty to take active and positive steps to redress Treaty breaches. It entails a fair and reasonable recognition and recompense for wrongdoing.

We can also look to the 1989 “Principles for Crown Action on the Treaty of Waitangi”, which define the essential exchange of promises within the Treaty in the form of principles. The first three of those five principles are:

“The Principle of Government/The Kawanatanga Principle” (The government has the right to govern and to make laws); “The Principle of Self-Management/The Rangatiratanga Principle” (The iwi have the right to organise as iwi, and, under the law, to control their resources as their own); and “The Principle of Equality” (All New Zealanders are equal before the law).

These principles reflect the three articles of the Treaty.

The fourth principle is “The Principle of Co-operation”, which encompasses “good faith, consultation, and partnership”.

It is stated that “The Treaty is regarded by the Crown as establishing a fair basis for two peoples in one country. Duality and unity are both significant. … Reasonable co-operation can only take place if there is consultation on major issues of common concern and if good faith, balance, and common sense are shown on all sides.”

The final of these five principles is “The Principle of Redress”, whereby the Crown accepts a responsibility to provide a process for the resolution of grievances arising from the Treaty.

There is a myth that the Treaty gave Maori extra rights over and above those of other New Zealanders.

Article III makes it clear that Maori were to have the same rights as other British subjects, the same rights as the settlers. Article III was an explicit equaliser and a promise that Maori were not to have race-based legislation passed against them.

Maori have no extra rights or privileges under the Treaty or in the policy of the New Zealand government.

So why have Maori invoked the Treaty, if they are on a par with other groups for access to resources and funding?

The British world of 1840 was a class and race-based power-system, at home in the United Kingdom and abroad. Segregation formally or informally was a fact of life throughout its colonies. South Africa as we know was the last bastion of that world.

What Article III guaranteed, in the context of that age, was that Maori would be equal to all other British subjects in the eyes of the law and of the state.

It was necessary to expressly state this back in 1840. Non-discrimination or equality could not be taken for granted. The Maori signatories themselves required this assurance, so that they would not descend into a sub-class.

The Victorians understood civil rights, but they were rough and ready and you had to enforce your rights if they were to be upheld, otherwise "tough".

The Crown Colony government knew perfectly well what Article III meant and how Maori understood it. In an Ordinance of 1850, Governor George Grey insisted that no laws were to apply to Maori that were not to apply to the settlers and to other British subjects.

So when Maori claim resources under Article III they are asking for what they see as their equitable share in relation to other citizens and in proportion to their needs.

Sometimes these claims are upheld, sometimes they are not.

I think at this point it's also important to dispel some of the myths about the supposed multi-billion dollar Treaty grievance industry. Since 1989 the government has paid out around $680 million in Treaty settlements. Putting this into context, last year alone Telecom made a $709 million profit, the government collected around $850 million in tobacco excise tax, and our total taxation revenue was over $40 billion.

Treaty settlements are an important part of putting the negative aspects of our past behind us and getting on with a brighter future but they shouldn't be over-stated or unnecessarily exaggerated.

It's worthwhile considering the spirit of the Treaty then in terms of New Zealand in 2004.

The spirit of the Treaty is about a bond between New Zealanders that should transcend disputes over conflicting intentions and linguistic wrangles over different texts.

The spirit of the Treaty is no mystery, even though the lawyers can make it out to seem like one.

I've talked about how it promises equality to Maori and non-Maori under the law. On the Crown’s side it also involves recognition of Maori property and customary rights guaranteed under it. On the Maori side it involves acceptance of the new sovereign power in 1840, and in 2004 acceptance of the state system that continues to guarantee their rights.

The Treaty was open-ended, not a straitjacket. It was a preliminary agreement to an on-going relationship under the same law and government. The terms of that relationship have changed over the past 164 years.

The Treaty left us considerable freedom to fill in its considerable gaps together. Overall the outcome has been good. What might have happened without it in the world of 1840 is interesting to think about.

The partition of New Zealand and of Maori amongst rival colonial powers is one scenario. New Zealand of the 1840s could have divided among British, French, Maori and any number of other countries. For example, New Guinea of the 1880s was divided between Britain, Germany and Holland. Who knows, New Zealand could have been split - like American Samoa and Samoa.

Living together as citizens in the spirit of the Treaty requires mutual respect. The basis for that has been there for a while now. Many New Zealanders enjoy and respond to films like Braveheart. There is as much myth as fact in Braveheart but that doesn’t spoil a good film. What people respond to is the spirit of the film, and that spirit is the defence by people of their liberties and their countries against an invading power.

New Zealand has contested history too, and to most Maori it looks, sounds and feels like Braveheart for the 19th century period at least.

Maori are not alone in having ancestors who were victims at one time or other of the British power structures. Power was as unbalanced in the Lancaster mills as it was on the Waikato or the Punjab.

Our job in New Zealand is to not perpetuate that bad past in our own land but to leave it all behind, and to get on with it.

We have to get over this implicit attitude that “History” just happened to Maori, and that Pakeha history is all either offshore, about fighting in two World Wars, or else is “World History” in which we are only a minor player.

The Treaty was signed in 1840, and its intent must be balanced and understood in terms of New Zealand in 2004.

We should behave as citizens in terms of both the spirit of the Treaty and of the spirit of modern New Zealand.

New Zealanders are quite rightly proud of living in one of the world’s oldest, most successful, participatory, and genuinely egalitarian democracies. We have a reputation for giving people a fair go. It pays to trust this democracy first and foremost, and to confide in New Zealanders and trust them to make the right decisions as I know they will.

New Zealanders know that just throwing out the Treaty is impossible and irresponsible, and that this sort of provocation will cost us all. However Pakeha New Zealanders also want to be trusted by their Maori fellow-New Zealanders.

New Zealanders do not want to be condemned and cursed as if they are the British imperialist white ascendancy colonialists. We see ourselves as egalitarian, fair-minded people who have little sympathy for elitism.

The Treaty and New Zealand democracy are reconcilable if we talk together as kiwis. They are reconcilable if Maori accept that the best guarantee of minority indigenous rights is the protection and good-will of the majority. Dumping on each other has no role in constructing a New Zealand for Maori and Pakeha citizens.

Most importantly, the Treaty and New Zealand democracy are reconcilable if politicians do not irresponsibly undermine the Treaty.

As the Prime Minister said earlier this year at the opening of parliament, "Responsible 21st century governments and societies don't try to reinvent the economic policies of the 1990s, the society of the 1950s, or the attitude towards indigenous people of the 1830s. New Zealand has moved on".

To conclude, the philosopher John Stuart Mill said the precondition for the political stability of any democracy "is a strong and active principle of cohesion among members of the same community or state".

Cohesion doesn’t mean assimilation of every single one of us into one mould of the identikit New Zealander, as National would want.

It means getting on with each other appreciating and enjoying our differences, and recognising how those differences add value to our country as a go-ahead, positive, future-looking nation.

I believe the vast majority of New Zealanders want this.

ENDS

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