Wo Futures- A Reverie on Constitutional Review

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Two Futures:A Reverie on C ons titutional ReviewD J Round

The sham e is not in hav ing once been foolish, but in not cutting the follyshort.'

On 8 December 2010 the Deputy Prime Minister Hon Bill English andthe Minister of Maori Affairs Hon Dr Pita Sharpies publicly announceda wide-ranging review of New Zealand's consfitufional arrangem ents .An agreement to conduct such a review had formed part of theRelafionship and Confidence and Supply Agreement entered into by theNafional and M aori Parfies w hen they went into coalifion after the 2008general election. Echoing the words of the Cabinet paper,^ Mr Englishwas cautious about the possibilities of change, saying that the review would keep in mind that enduring constitutional changes generallyrequire a broad base of support , and adding that significant change will not be undertaken lightly and will require either broad cross-party sup port or the majority sup port of vofers in a referendum .^ Anysimilarly cautious remarks of Dr Sharpies wenf unrecorded, however;insfead, he was reported as saying that he knew that Maori wan t totalk about the place of the Treaty of Waitangi in our consultation, andhow our legal and polifical system s can reflect Tikanga Maori. Healso remarked - again, echoing the words of the Cabinet paper - that [p]ublic con sultation will gu ide the review, and informafion andeducafion cam paigns will be parf of the review process. *

Cynics - and who is not occasionally cynical in observing politics? -might consider ominous the announcement of public informafion andeducation campaigns. The cynic might wonder if this suggests that the review would be as much concerned with telling the public whatthey should be thinking and wanting on the subject of the Treaty as itwould be with asking them what they actually w an t.' Indeed, althoughLLB(Hons) (Cantuar), Lecturer inLaw,University of Canterbury; authorof Truth or Treaty Com monsense Questions About the Treaty of Waitangi(Canterbury UniversityPress, 1998);National Party candidate at the 2005


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Mr English might speak of the necessity of widespread support forsignificant change, the Prime Minister has show n no interest in his ownvery similar promise that Labour's 2004 Foreshore and Seabed Actwould not be repealed and replaced in the absence of widespread publicsupport. Mr English's requirem ent of cross-party sup por t or referendumapproval m ight refer only to changes to the matters currently entrenchedin the Electoral Act 1993, and no more. On the other hand, the reviewis described as a cross-party one, where all parliamentary politicalparties w ill be represented. But then, just as the Labour Pa rty's defencein2 11ofitsow n2 4foreshore and seabed legislation was very m uted ,perhaps with the thought at the back of the Party's mind that it mightone day need the assistance of the Maori Party to form a government,so it might be that in this review also both major political parties feelinclined to be more accommodating of Maori Party desires than mostNew Zealanders would wish.^ Politicians, as much as anyone else, canbe guilty ofaconspiracy against thepublic;they have been notorious forclosing ranks, for example, where their own privileges and perquisitesare at stake. The Cabinet paper could even be construed as pointing inthis direction already, since it speaks of seek[ing] the views of all NewZealanders ...in ways thatrefiect theTreaty relationship , and in waysthatrefiect the partnership modeland are responsive to Maori consu ltationpreferences .^ Consultation with Maori, in particular, must be reflectiveof the Treaty rela tionship . All this could surely be saidtobe begging thequestion and already assumingasfact wha t actually hasto beestablished.

The subject matter of the announced review would fall into threegeneral categories. One category is of general parliamentary matters -the size of Parliament, the length of the Parliamentary term, the size andnum ber of electorates and electoral integrity legislation . The secondcategory concerns specifically Maori issues - Maori representation,including the Maori electoral option, Maori electoral participation andpossible reserved M aori seats in Parliament and local government - andthe role of the Treaty of Waitangi in our constitutional arrangem ents .The third category concerns a possible wr itten constitution and Bill ofRights issues . The ques tion of New Zealand becom ing a republic doesnot appear on this list, although the Cabinet paper contemplates thatthe review may consider other matters that are raised during publicengagem ent, especially the republican question and relations between


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national and local government. The second and third categories areintimately connected; whether New Zealand becam e a republic or not,it is certain that any written constitution which we might adopt in thecurrent political climate wo uld in one way or another ensh rine theTreaty and place it in a position of some eminence.The press statemen t 's em phasis on Parliamentary cross-partysupport, particularly desirable when constitutional legislation is beingmade, led easily to the belief that the review would in fact be conducted

by politicians.* It will be in part; bu t just as this article was going to press,another press statem ent' announced 2appointees to the ConstitutionalAdvisory Panel , an independent group thatwilllead public discussionon constitutionalissues...and will then reporttothe Ministers and to theCross-party Reference Group of Members of Parliament . The Panel'sco-chairs are Em eritus Professor John Burrows QC, whose fairness andreasonableness cannot be doubted, and Sir Tipene O Regan, whosemoderation has on occasions led to his condem nation by Maori radicals.Their names m ight well provide reassurance and quell cynical thoughts;bu t an analysis of the entire panel may provoke m ore mixed feelings. Thepane l's racial composition is evenly balanced, w ith five European NewZealanders,' fiveM aori, one Pacific Islander'^ and one New Zealanderof Asian extraction.'^ Among the Maori members are certainly some -Professor Walker, most niotoriously - who can reasonably be expectedto pursue a pretty radical programme. Professor Burrows' legendarypatience and reasonableness are going to be sorely tested.

IIMaori responses to the announcement have tended to confirm suspicionsthat the review may well be, more than anything else, an occasion forthe promotion and entrenchm ent of Maori interests and privileges. Thereview arose, afterall,out of agreement between the National and MaoriParties as part of the price of Maori party support. It deserves to beem phasised that, apa rt from catering to the asp irations of one particularpolitical party and members of the racial interest group it represents, thereview has no evident necessity or purpose. M utterings continue on thematter of proportional representation, but tha t issue does not require any


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thorough constitutional review and in fact is already being dealt withby way of referendum coinciding with this year's general election. Noobvious constitutional prob lems have arisen recently. Rahui KateneMP,the Maori Party's Constitutional Issues Spokesperson, has declared theParty's hardly su rprising belief that the Treaty of Waitangi must be thebackbone for constitutional change .^ AMaori Party fact sheet says thatthe party's ultimate goal...is to ensu re that the Treaty of Waitangi isgiven proper recognition and that constitutional arrangements in NewZealand allow for full engagement and recognition by tangata whenua .'On15December2 1 Professor Margaret Mutu and M oana Jackson, twowell-know n radical Maori voices, announced that a group of iwi will beholding its own constitutional review, without any input from anyonebut Maori, in order to formulate their own conceptions of a desirableconstitutional future. We may surely take judicial notice of the Maoriactivism and agitation which has been one ofthemost prominent featuresof our national life since the1980s.In these circumstances it would surelybe surp rising if claims for the recognition and entrenchment of Treatyrights were not a central focus of the review.Whether by coincidence or not, the Waitangi Tribunalhas,after over2years of slow gestation, finally released its report on the Wai 262 cla im.''The claim has grown since it was originally m ade as one for ow nershipof all native flora and fauna, and the report covers intellectual property,genetic and biological resources, the Resource Management Act 1991,the conservation estate, Maori health, the Maori language and cultureand Maori participation in international instru m ents. It is a wholeof gove rnm ent report, addres sing the wo rk of more than twentygovernment departm ents and agencies . It is good to read in it that theTribunal considers it necessary to move beyond grievance in the Treatyrelationship , bu t the Tribunal does not conclude from that that its workis largely done: No - the Tribunal, although professing not to pre-em ptthe work oftheconstitutional review, maintains that the Treaty envisagesthe Crown-Maori relationship as a partne rship, in which the Crown isentitled to govern bu t Maori have full authority over their treasures ,a term now used to encompass language, culture, physical health andmuch besides.

It is not necessary to be a Marxist in order to accept that all laws,including constitutions, express the desires and further the agendas of


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after the latest round of full and final Treaty settlements^ and alsopolitically influential, especially through the Maori Party's Parliamentaryrepresentation. The Maori Party avowedly exists to promote the interestsof its own race. Why would it not desire to influence constitutionalchange in its own favour?What would it mean, then, to have the Treaty of Waitangi givenproper recognition , and to gave constitutional arrangemehts which allow for full engagement and recognition by tangata whenua ?^' To

speak of future arrangements which allow for recognition by tangatawhenua suggests that the fundamentals of our present very longstandingarrangements are not recognised by them now as legitimate,^ andDr Sharpies does indeed seem to be contemplating some far-reachingchanges. Our laws now recognise the equality ofallcifizens, and certainlynothing in them prevents Maori, or anyone else, from fully engagingin constitutional processes. Any change would presumably be a changeaway from present equality, and that must mean, to put it simply, achange towards inequality.^'How, indeed, could the Treaty be given any recognition in our law?As has already been observed,^^ the terms of the Treaty - the words

race,sex and sexual preference rather thanclass,and applyaneo-Marxistanalysistothem.InNew Zealand, race has sup plan ted sexas themostpowerful identity.Wecontinue to read of females, both visitors and locals,being placed in inferior positions on maraes. Desp ite feminists' pro tests,marae protocol regularly trum ps the equalityofthe sexes.According toMichael Butler [t]he total redress pail un de r Treaty...settlements [since 1989]is approaching $2.5 billion ,and thenext fiveyears should bring thetotal toabout $3.5 billion.MButlerMoneyfornothing-Treaty Settlements 1989-2011 Analysis and Com mentary (NZGPR,21 A ug us t 2011).Mao r i Par tyOur A spirations: Constitutional ourage Constitutional Change(Factsheet, undated).In this view heissupported by such academic writers as the late ProfessorFM(Jock) Brookfield, whoargued that British sovereignty overNewZealandhasnever enjoyed more than partial legitimation, andthatthe Grown therefore owes Maorianineradicable du tytoallow them aqualified autonomy of some sort F MBrookfieldWaitangi and IndigenouRights Revolution Law andLegitimation (Auckland University Press,Auckland, 1999)at169ff.


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actually written on the paper - are short and simple, and provide nobasis for arguments for special treatment. They do no more than givethe m ost basic of bluep rints for any organised state. By the first articlethe Queen is declared to be sovereign. By the third article Maori aredeclared to be her subjects, with the rights and privileges of subjects.This article is, obviously, the mirror-image of the first - Maori have therights of subjects because they are subjects, and the Queen can grant thoserights and protec tions to them only because she is sovereign. These twoarticles mus tberead together. As a simple m atter oflogic,if M aori insisfon the rights and privileges of all the Queen's subjects then they mustacknovvledge the authority which generates and maintains those rightsand privileges. The second article amplifies the third, by guaranteeingto Maori the possession of their property, a right possessed by subjects.

That is all the t rmsof the Treaty - in the English version, anyway -actually say. There is no mention of partnership or special privilege,only of equality before the law. The Queen is sovereign, and Maori areher subjects, with the rights and privileges of subjects, including thepossession and enjoyment of their own property. Now given that welive in an established state where the Queen u ndoubtedly is sovereignand where we all have the rights and privileges of subjecfs, including fhepossession and enjoyment of our own property, it would be completelymeaningless to make the terms of the Treaty part of our fundamentalconstitutional law. It would grant Maori precisely nothing that they donot have already. Indeed , it could even be used as a basis for deprivingthem of any special positions they now enjoy. Dr Sharpies believes tha tthe Treaty clearly foreshadow ed a plural sociefy, in which fhe variousaufonomous hapu would work in parfnership wifh the Crown for thebenefit of all citizens... .^^ That is not obvious from the Treaty's word s,and certainly sounds very different from our presenf arrangements.

It is important to draw this distinction between the terms and theprinciples, because the princip les are a mode rn invention, and stillof very limited legal standing . The principle s appea red only afterthey w ere referred to by Parliam ent in several statutes; first the Treatyof Waitangi Act 1975, which established the Waitangi Tribunal andauthorised it to consider complaints against laws, policies and acts ofthe Crow n which were inconsistent with the principles of theTreaty ,^ *and thenahandfu l of other statutes, the first to intrud e itself upo n public


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is becauseany set of principles is nothing more than the personalinterpretation, easily becoming the political agenda, of the personsomehow extracting or discovering them by mysterious distillation fromwhere they lie within the termsoftheTreaty.The Treatyitself, ofcourse,hasper senostatusin ourlaw.^ It isstrangetothinkof alegal conceptas less than nothing,but these recent inventions,theprinciplesof theTreaty, ha ve ,outsidethe particularmention of them inparticularstatutes, evenless status.The principles , even moresothantheTreatyitself, do nothaveanyindependent legal existence,and tospeakof NewZealand'sconstitutional orderasbeing founded on theprinciplesof theTreatyisnonsense.It is avery easy progressionforM aoritospeakof theTreatyasa founding docum ent -whichmay betruein apolitical sense,butcertainly notin legalone-and from there to speak of Treaty princ iplesas fundamental to ourconstitution,andthento put adesired politicalslant on wha t those principlesare;but ateach step this involves a failureof logicand law.The debates overtheplaceof theTreatyin our law,constitutionand

national lifeare notlegal debates. Maori prefer tophrase theminlegalterms,for ournational sp irit isfarmore amenable to claims based in lawthan to ones basedonunearned privilege. But Maori claims long ceasedtobem attersoflaw. Theyare - notjustinmetaphor,but inactual fact- thecolossal program meofconfidence m en.It ishighly convenienttodisguise themaslaw,but itisnottrue.Itisnot thecase, then, tha t thereis somewhere some agreed listofM aori requirements forjust redress,which, once satisfied, willbe an end of them atter Dem ands will neverend . As one concession is made , another new claim is raised. The failureto realise this- the failure to realise that the issues are not legalones,butpolitical gambits by an interest group which, not unreasonably, continuesto exploitthestupidityandirresolutionof itsopponents- mars muchlawyerly writingon the matter. Professor Matthew Palmer^* expressesthe desire, commendable inprinciple at any rate, to stabilise theconstitutional placeof theTreaty;hewarns thatifthis doesnothappen

and theTreatyof Waitangi, Implications for the Public ConservationEstate (1995) Public AccessNew Zealand (PANZ) Monograph No 6.A paper p roduced by the Par l i amentary Commiss ioner for theEnvi ronment , Environmentat Managementandthe Principles of theTreaty of


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"someone" - one gets the impression, a European New Zealander -"will scratch at the scab of fear and prejudice". He considers that theWaitangi Tribunal might be "well-placed to give independent" (sic )"adv ice to par liam ent on the Treaty imp lications of legislation" Herealistically accepts that a majority of the populatio n w ould not acceptthe "principles" oftheTreaty as having the sta tus of superior law. But hiswriting, more sensible though itisthansome,is neverthe less influencedby the assumption that "Maori" and "other" New Zealanders are now,and always will be, two distinct peoples; that a vibrant Maori culturerequires (for some unstated reason) the Treaty to have some legal status- and, most ofall,itismarred by the assumptions, entirely unsupp ortedby evidence, that "stabilising" is possible, and that Maori claimants arereasonable people who, having received one act of financial, legal orconsfifutional generosity, will not at once return to demand som ethingmore.

IllAppetites grow as they are fed, and if is not at all certain that Maoriambitions will everbesatisfied. For the time being, however, judgin g byMaori rhetoric, they m ight be satisfied in several ways. One way mightbeby some redefinition or alteration of our understanding of sovereignty,justified by argum ents that the M aori version of the Treaty, in retainingte tinorangatiratanga for Maori while recognising kawanatanga in theQueen, agreed to somethinglessthan what we usually understand by thesovereignty of the Crown. In the far no rth Nga Puhi have recently Jbeenarguing before the Waitangi Tribunal that such was their u nders tanding.The Waitangi Tribunal has from time to time accepted that "the essenfialsof sovereignfy were not lost in the debate at W aitangi...on reading theMaori text in the light of confemporary statements, we are satisfiedthat sovereignty was ceded".^' But on other occasions the Tribunal hassaid rather different things, and it is not impossible that in the presentpolitical climate it might choose to make a "finding" favourable to thosewho deny the sovereignty of fhe Crown. Such a finding would haveno immediafe legal effect, for the Tribunal can, with one exception notrelevanthere,only make recom mendations, bu t its political effecf wouldof course besignificanf.It would, like New Z ealand 's ratification of fheUnifed Nations Declaration on the Rights of Indigenous Peoples,^" beanofher fool in fhe deconsfruction of a nafion.


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practice.) The alleged differences betweentheMaori and English versionsof the Treaty on the matter of sovereignty are illusory. Bothkawanatangaandrangatiratangaare missionary words, coined by the missionaries andhavingnogeneral currency in the Maori language.Kawana indeed, is theMaori pronunciation of governor and the word appears in the MaoriNew Testament to describe Pontius Pilate,kawanaof Judaea.Rangatirait is true, is a Maori word, butrangatiratanga - the quality or nature ofbeing arangatirais not. (It is also worthy of note thatrangatiradoes notstrictly mean a chieftain - anariki- arangatirais rather a gentleman ornobleman, a man of high rank. It includes chieftains, but it also includesmany others.) By 1840 most Maori were familiar with the Bible andwould have kno wn that the Judaea of Pilate's time w as a province of theRoman Empire, and they would have a fair idea of what that entailed- a Roman governor with very wide powers, and yet still the servantand emissary of a distant abso lute authority. Judaea w as in fact only thetributary of a foreign occupying power, and a power, as stud ents of theNew Testament would know, considerably resented by many Jews. By1840,too, many M aori had visited Australia, some even England, andwould have acquired a fair idea of what the Oueen's protection meant inpractice, as well as an understand ing of Britain's actual physical pow er.Moreover, the Treaty, as is well known,^^ was drafted first in English andthen transla ted by Henry W illiams and his son Edw ard into Maori. (TheEnglish version w ith which we are familiar is a back-translation of theMaori.) The draft from which they worked may or may not be lost, ^ bu tthere can be no doubt but that it spoke of the Queen 's sovereignty as weund erstand it, and there can be no doubt but tha t the translators, honestmen knowledgeable in the Maori tongue ,^ endeavoured to translate into^ C OrangeThe TreatyofWaitangi(Allen Unwin, Wellington, 1987) at37.' ' Aplausible prim a facie case has been put forward by Martin Do utre tha tthe so-called Littlewood Treaty is this draft: M Doutre,The ittlewoodTreaty The True English Text of the Treaty of Waitangi Found ( De DanaanPublishers, Auckland , 2005). Whether this be the case or not, the precisestatus of the Littlewood Treaty is undoubtedly an intriguing question,and we can only speculate as to why scholars so keen to delve into everyother aspect oft heorigins of the Treaty of Waitangi showacom plete lackof interest in this particular question.** Claudia Orange maintains that HenryWilliams wasnotan acknowledgedexpert as a translator, and his son Edw ard was not an experienced


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Maori the meaning of the English draft. The very nature of the Treaty'sorigins - as an English draft w hich purpo rted to cede sovereignty beingthen translated into Maori - render differences between English andMaori versions improbable.^^Given that Henry Williams' translation into Maori of the first articlegranted sovereignty to the Crown, it is inconceivable tha t his translationwould then contradict itself in the second article by allowing thatsovereignty to remain with Maori. That Maori present at Waitangi

understood what was meant bykawanatangais evident from the remarkof one chief that if sovereignty - kawanatanga- were ceded, he wouldthereafter have to ask the permission of the British authorities to pad dlehis canoe across the river. He had taken the point too far - bu t he clearlyknew what authoritykawanatangainvolved.Dr Claudia Orange maintains^* that so sophisticated a concept assovereignty could not receiveaprecise definition in one Maori word, andthat it refers to authority in an abstract rather than a concrete sense .In her previous sentence, however, she had spoken of the powers ofPontius Pilate and governors of New SouthWales.It can hardlybearguedthat the powers of the man who ordered Christ to be put to death, orof he whose rule over nearby N ew South Wales imm ediately affectednot only Australians but, in many ways, Briton and Maori here, weremerely abstract pow ers. She argues also thatrangatiratangawas usedin Busby's 1835 Declaration of Independence to refer to New Zealand'sindependence. This, however, is surely a circular argument; it assumeswhat it sets out to prove.Rangatiratanga in the 1835 Declaration meantwhateverrangatiratangameant, whatever that mightbe.But its use there

does not mean that the word m eant indepen dence , even if Britainhad acknowledged the Declaration. That is a gloss which Britain mayhave put on the word. Moreover, given the comic opera nature of theDeclaration - Pember Reeves' description of it as a bloodless puerilityand comical schem e to prov ide the machinery of civilisation foraraceof savages still plunged in bloodshed and cut asunder by innumerablefeuds and tribal divisions ^^ was a fair sum mary of opinion a t the timeandlater - the wordrangatiratangais surely likelier to be reduced rathe rthan enlarged in meaning by such associations.Dr Orange finally maintains thatrangatiratangawas the word used forGod's kingdom in translations of the Lord's Prayer, gospels and various


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prayers, whereaskawanatanga leierredto rulership or principality ina vaguer sense . She seems to contradict herself here. It is surely therangatiratanga of God's kingdom which is the vaguer concept whencompared with thekawanatanga of the governors of Judaea and NewSouth Wales.3The Treaty must be understood in the light of the discussions whichtook place before its acceptance. It is not unreasonable to call agreedunderstandings to aid in the interpretation of a document, and there

is no reason to disbelieve Henry Williams when he wrote* that [t]heinstruction of Gaptain Hobson was not to allow any one to sign thetreaty till he fully understood it , to which instructionIdid most strictlyattend. In 1863 the Revd Samuel Warren wrote: 'I waspresent atthegreat meetingatWaitangi whenthecelebrated treatywas signed, and also atameeting which tookplacesubsequently on thesame subjectatHokianga. There w asagreat dea loftalk by the natives,principally on the subjectofsecuring their proprie tary right to the land,and their personal liberty. Everything else they were only too happytoyield to the Queen, as they said repeatedly, because they knew they couldonly be saved from the ruleofother nations by sitting under the shadowof the QueenofEngland.In my hearing they frequently remarked'Letus be one people. Wehadthe gospel from England,let ushavethe lawfrom England.' My impressionatthe time w as that the na tives perfectlyunderstood that by signing the treaty they became British subjects,andthough I lived amongst them more than fifteen years after theevent,and often conversed with themonthe subject, I never saw the slightestreason to change my opinion . The natives wereatthe time in mortal fearof the French, and justly thought theyhaddoneapretty good stroke ofbusiness when they placed the British lion between themselvesand theFrench eagle.

To this very day there are millions of people who yearn for the statusof British subjects. There can be little doubt but that in 1840 many Maoriequally coveted formal membership of what seemed to them - as itundoubtedly was - a great and powerful polity, bringing the undoubtedblessings of peace, law and many material comforts to a dark and war-torn l d * 2

C OrangeThe TreatyofWaitangi(Allen Unwin, Wellington, 1987) at41.Letter from Revd Samuel Warren to Bishop Selwyn regard ing the Treaty


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Should any doubts still persist on this point, they may surely finallybe dispelled by the Kohimarama Conference, when over200chiefs frommany parts of the country, including27from Nga Puhi, attended a monthlong hui in July and August 1860."^ The Conference was notable for theemphatic assertions, made repeatedly by those present, of their loyaltyto their sovereign the Queen and to her law. Tamati Waka Nene, whohad signed the Treaty at Waitangi, said "I know no sovereign but theQueen, and I shall never know any other".TeTaurau spoke: "I am fromNga Puhi.. ..there[is]but one name upon earth - the Queen. Let us thenrest under the [Queen's] government". WiTeTete said "Let me have thelastword Wehave now become one people under the Queen". This wasa chorus, in which the Nga Puhi chiefs joined their voices with others inunanimous recognition of the Queen's sovereignty.Since the concept of sovereignty is admittedly without physical shapeor form it may perhaps be difficult to point to the precise momentat which it passed from the keeping of Maori to that of the Queen.Professor Rutherford, in his 1949 monograph, long considered the

orthodox view, considers10possible dates when sovereignty might havepassed, although he is nevertheless able to settle on one."" But whatever

hera ld an at tack. PM o o n This Horrid P ractice: The Myth and Reality ofTraditional Maori Cannibalism (Penguin, Auckland, 2008) at157-158.Similar statements appearonmany other pages.Itwouldbesalutary,but the au tho r's motive might be misunderstood,toquote further fromthis appalling chronicle, from R D CrosbyThe MusketWars:AHistory ofInter Iwi Conflict1806- 1845 (Reed, Auckland , 1990),orfrom numerousfirst-hand accountsby contemporary impartial European observers.Mr Grosby estimates that "[o]f an estimated 100,000- 150,000 MaorilivinginNew Zealandat oraround 1810,by1840 probably somew herebetw een 50,000 and 60,000 had been killed, enslaved or forced to m igrateasaresultofthe w ars.. . (p17) He observes also that tribal bou nda riesas they existedin1840 often bore littleifany resemblancetothoseof ageneration earlier. To app ly 'the 1840 rule' to this distributionofpeopleand power[asthe Waitangi Tribunaldoes]has as much logic, and as muchfairness, as the applicationofa hypothetical '1940 rule' w ould have hadon the bordersofEu rope. (p12)At the timeofthe 1845 census the totalnum ber of Ngai Tahu was somew here about1,050,their num bers havingbeen reducedby thegreatkai huaka feud andthenbyTe Rau parahaaswell as by the w hite m an 's diseases . In actual fact, and by the Maori law


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uncertainties there may have been in184 had long been se ttled by 1860.It must be added that the authority of chiefs in Maori fribal societywas autocratic, dictatorial and absolute.Yetif Maori activists are actuallycorrect in their claim that te tinorangatiratanga preserves to the chiefsfhese sovereign powers, they are surely obliged to require, and submitthemselvesto,its restoration. They cannot have it bothways;they cannotrequire the restoration of chiefly authority, and th en completely redefinethe natu re of fhat au thority into some more politically-acceptable sortofgeneral unfettered independence . And if fhey were to attempt to arguethat with the passage of time chiefly or tribal authority has (unnoticedbeneath the surface of things) evolved into something rather moreacceptable to the citizens of a very un-author itarian social welfare state,then it could surely be replied that its evolution could well have beenin another direction, that of complete disappearance.Let us remember too that sovereignty is not just a legal conceptwhose existence and transfer is a mafter for law yers and law yers alone.Sovereignfyis abrufe fact, and ifisnow a century andahalf and more too

late to deny ifs existence.Todeny now the sovereignty of the Queen andthe legality oftheexisting constitutional order would make no more sensethan to argue that Great Britain's real sovereign now is not ElizabethII of the House of Windsor but rather A lbert of W ittelsbach, the Princeof Bavaria, who is, by the law prevailing before fhe Revolution of 1688,the lawful heir of James VII and II of the House of Stuart.*'There comes a time when it no longer makes sense to argue with thefacts on the g round. Yet advocates of Maori sovereignty are the Jacobitesof today. Their claims are, however, taken more seriously than one

might expect. In what o ther aspect of our national life - for that matter,in what court of law - would one or two words - wo rds whose allegedmeaning of Maori sovereignty is, at best, by no m eans established, andin a docum ent of no legal standing - be entertained as a serious threatto the entire established law and social fabric of almosf one and threequarter centuries? The pedantic quibbler who proposed such a thingwould be laughed out of court. Yet not just Maori radicals but sundryintellectual and influential flgures seriously suggest or contemplate thatMaori (however defined) should, because of the Treaty, be entitled toshare, if not take completely, the sovereignty of fhe Crown. It is surelylikely that the majority of New Zealand's population, not being of Maori


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adm inistration in practice. If they w ere to object, then the imposition ofsuchaproposal couldbeachieved only by the ignoring of their objectionsand perhaps, ultimately, by forcibly suppressing them. Yet if the M aoriaspirations currently being actively encouraged by our political andintellectual class are not realised, there will undou btedly be much M aoridiscontent. It rem ains inexplicable why any country should be so busilycreating such a serious and insoluble problem foritselfThe concept of par tnership , as currently expounded , is no less than a

sort of sovereignty, and very different from the pa rtne rship all too looselyspoken of by the Court of Appeal in 1987. The Court of Appeal thenused the word s pa rtners and partie s interchangeably. ^ Moreover,the Court identified other Treaty principles, including the du ty of loyaltyto the Queen and the Queen's government and obedience to the laws.Loyalty to the Queen is hardly consistent with a partnership with theQueen. The partnersh ip the Court spoke of was rather of a partnershipbetween races .If there were to be a partnership of Maori and the Crown, then by

definition Maori could not be subjects of the Crown. One cannot be apar tner and a subject at the same time. If there were to be a par tnersh ipof Maori and fhe Crown in the government of New Zealand, then itmust follow logically that the only people w ho would be subjects w ouldnot be Maori - they would be partners - but rather non-Maori, whowould be the subjects of fhe Crown and also the subjectsof the Treatypartner w ho shares the Crown 's authority. The necessary and inevitableconsequence ofaCrown-Maori pa rtnership is the inferior status of allnon-Maori citizens.IVAnother way in which Maori ambitions might be satisfied, at leastfor the short term, would be by establishing, as some entrenched andoverriding superior law, not thetermsof the Treaty but theprinciples It istheprinciplesof the Treaty which various sta tutes hav e referred to sincethe1980s.Yet those principles are simply no t agreed on, neither in theirnum ber no r their na ture nor their ex tent. At the very best a list of Treatyprinciples is a list of platitud es among which canbefound some that canbe used to justify any desired decision. Moreover, even the most innocentlist of Treaty principles speaks from a particular political backgroundand agenda. Paul McHugh has written that [n]o-one pretends that the


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Two Futures:AReverie on Constitutional Review 539

Council VAttorney-Ceneral,felf moved fo observe fhaf parfnership hadtaken on a life of its own and had gone far beyond what the Court ofAppeal had contemplated when its judges, obviously far too loosely, usedthe word.** Sir Geoffrey Palmer considers fhaf some of the scholarshipsurrounding [the Treaty] is highly suspect, fuelled as it is by politicalmofivafion rather than detached analysis .*' That phenomenon has notdiminished since he wrote those words.To enshrine the principles of fhe Treafy as some superior law would

therefore be very dangerous, for it would be an open invitafion to acfivistjudges and bureaucrats to readjust and rewrite the laws of our countryat their leisure and pleasure.' The Ministry for the Environment wasmore prophetic than it may have realised when it wrote that statutoryreferences to the principles...have provided room for fhe courfs torewrite and moderate the actual terms. ...Partnership has little or nointrinsic meaning and so can be made to mean whatever it is wished tomean. It is an empty box to be filled by whomever wields power on the

^^ AswellasNeiu Zealand Maori CouncilvAttorney G eneral (n46),SirRobinCookehasalso writtenofpa rtnership as amere analogy ;RCooke, In troduction (1990) 14 NZULR 5. ' G Palmer The TreatyofWaitangi-PrinciplesforCrown Action (1989)19 VUWLR 335at336.' S Elias Sovereigntyin theTwenty-First C entury: Another Spinon theMerry-go-round (2003)14PublicLawReview 148: ...Parliam entisnot limited by earlier legislation.But it isboundby the constitutionwhichmaypartlybeexpressedbyearlier legislation.Theconstitutionevolves. Saying wha titisina case where the contentofthe constitutiondirectly arises is ultimatelyforthe courts. That is because the conditionsof valid law-makingarelaw. Parliamentissupremeaslegislator. Butitlegislates under the law oftheconstitution.. .An untramm elled freedomofparliam ent does not exist (pp 162-163). But see also Elias CJ's com mentsin the Harkness Henry Lecture2011,University of Waikato,12September2011.HerHonour observed that commonlawconstitutional principlesinclude the ruleofrecognitionofthe pre-eminent law-making authorityof Parliament andthatshe was not one of thosewho thinks thatourconstitution isdeficient because thecourtsdo notdisallow statutesasunconstitutional.But she also said herconcern was not tospeculateabout what the courts would orcould do faced with legislation thatundermined the democratic legitimacy of Parliament or the independenceof the courts. Forademocratic Parliament to make such legislation would


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day. The concept cannot be found in the words of the Treaty. ^'It may well be unwise to tie ourselves down with any writtenconstitution and entrenched bill of rights, for that would at oncetransform many political and moral questions into legal ones. It wouldenable politicians to abdicate their representative and deliberativeduties, deprive the people of any future say in fundamental quesfions,and hand over much power to (currently) unelected and unaccountablejudg es . Section 8 of the New Z ea land Bill of Rights Act 1990, for

exam ple, declares that [n]o one shall be deprived of life except on suchgrou nds as are established by law and are consistent w ith the principlesof fundamental justice . If judges were to be entitled to strike downstatutory provisions because they allegedly breached such fundamentalright, then im portant political and m oral questions, where judges haveno superior know ledge, training orvirtue,would atoncebecome m atterson which the public and their elected representatives would never againbe entitled to make decisions. Fund am ental issues concerning abortion,euthanasia, capital punishment and indeed public funding for healthservices would thereafter become legal matters for judges to decide.Politicians might welcome being spared the awkwardness of debates anddecisions on aborfion, although they wouldbe lessappreciative of judges'declarations of their legal duties concerning health funding; voters wouldmost certainly resent being depriv ed of a voice on all these issues.

The Treatyisa matter at least scontenfious as abortion, euthanasia andcapital punishment, and it is one where judges have no special insightsor expertise, and w here, indeed, they should by now have learnt throughpainful experience that they are no better qualified than anyone else tosolve problems that are political and not legal. It may well be unwisefor us to tie ourselves down with any written constitution and bill ofrights; but how much more unwise it would be to be tied down by adocum ent at once as meaningless and as charged w ith political potentialas the Treaty, as su rrounded by myth, propaganda and controversy, andincreasingly tied to doctrines of racial inequality and privilege.

These two courses - the redefinit ion of sovereignty and theentre nch m ent of Treaty prin ciple s - could well be argue d to beessentially the same thing, and one cannot say where they might lead.Whatever method, however, is chosen to satisfy current Maori


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vo Futures A Reverie on Constitutional Review 541

the 1930s and early 1940s. It would be open to abuse as some citizenswere, in effect, allowed to choose which jurisdiction and personal lawthey would prefer for the future. It would inevitably become an avenuefor corruption. It would also be an utterly artificial exercise, not even aconscious anachronism but a conscious invention. Many Maori are ofmore than one hapu. Many Maori, especially poor, urban dispossessedMaori, most likely to be in need of the financial and social supportthat hapu might offer, are quite unaware of their tribal identity. Maoriethnicity, as Mr Simon Chappie has pointed out,^^ is not a rigid binaryprimordial dichotomy but rather fluid, differing in degrees of interestand commitment, and constructed. Most importantly, many, perhapsmost, of those Maori who are aware of their tribal links neverthelesshave little day to day practical association with their tribes, and wouldmost probably deeply resent being forced into submission to archaicand undem ocratic tribal authority. Many Maori consider themselves justas New Zealanders, with a somewhat, although not entirely, differentbackground from that of many othercitizens.This could well be arguedto be as it should be. Only for a small minority does the tribe remain agenuine living part of life, and one cannot help but w onder if a hint ofself-interest underlies that minority's eagerness to see power return totribes and to them. If many of Maori descent turned out to be reluctant toabandon the blessings of the Queen's law and subject themselves againto the authority of autonomous hapu, that would presumably lead togreater shares and influence for fhose who were hapu members.

All New Zealanders of Maori descent are also of non-Maori descent;no particular fraction of Maori blood is required before someone maydeclare him or herself to be Maori. The Electoral Act1993,for exam ple,defines a Maori as a person of the Maori race of New Zealand ; andincludes any descendant of such a person .'^ Anyone with the tiniestdrop of Maori blood, then, can claim to be Maori; indeed, Ngai Tahuincludes on its roll of members som eone w ho is1/256th N gai Tahu. Butit is absu rd to suggest that anyone w ho has only that fraction of Maoriblood is in any meaningful w ay M aori . In nearly all cases it wouldbe absurd to suggest that someone who is even one eighth Maori wasMaori in any comprehensible sense . He or she is not genetically M aori,and is extremely unlikelytobe culturally Maori. He or sheisextremelyunlikely ever to have suffered any racial discrimination because of thatfraction of Maori blood, and is also extremely unlikely to be suffering


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implied by the claim, require racial definition.It isnecessary to know whowill be in those hapu which are operating in partnersh ip with the Crown.Aldous Huxley argued in nds and Means^ that there is, ultimately,no difference between those two things, as the means one employsdeterm ines the end one will achieve. The world is round, and so one can,say, travel from Paris to Rouen via Shanghai; but history is flat, and soone cannot work towards an objective by walking away in completely theopposite direction. One cannot usher inareign of peace and brotherhood

with guns. Neither, we might surely add, can one usher in a reign ofracial equality with racial definitions and different legal regimes fordifferent races.The time is clearly past when the Treaty was an argument or vehiclefor racial equality. It is difficult to know whether one should profess tob surprised, or not, that it is the National rather than the Labour Partywhichhasbeen m ore accommodating to growing M aori asserfiveness. Atthe2008general election National campaigned on a promisetoend racialseparatism , even as far as com mitting itself in principle - not necessarily,

it was understood, in the very imm ediate future -todoing away w ith theParliamentary Maori seats. Yet in office this National-led governmenthas ratified the United N ations Declaration on the Rights of Ind igenousPeoples (which the previous Labour governm ent had refused to do) and,despite various oppo rtunities and available excuses as to why Nationalmight have changed its mind, it has repealed Labour's Foreshore andSeabed Act 2004 in favour of something which might well turn out tobe inconceivably m ore generous to Maori. The proposed constitutionalreview may well flow in the same direction.Folk wisdom tells us that it is easier to let worm s ou t of a can than toget them back in, and impossible to recapture the evil spirits Pandorareleased from her fatal box. Time will of course tell, bu t might it be thatour still coherent but increasingly tattered nation could, especially in afuture of economic stringency, resource depletion and environmentalcrisis, be destroyed by the spirits which politicians of many politicalparties, and the mandarin, bureaucratic and academic class now seemactually determ ined to conjureup?^*Just as important, have w e reachedthe stage in our na tional life when it is now forbidden to raise that even

as apossibility If we have reached that stage, and it is forbidden evento say that continued political and constitutional - and indeed material


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Two Futures: A R everie on C onstitutional Revieiv 543

- generosity to Maori might not be a good idea, then we are therebyrefusing to face one possible future for our country.Torefuse to face anyreal possibility is surely a foolish courting of disaster.Thereisabundan t evidence to suggest the very real possibility that veryhard times lie ahead for the world and for New Zealand. On countlessoccasions, however, your author has observed that his countrym en andwo men simply refuse to contem plate the remotest possibility tha t thingscould ever go wrong. He may talk with some degree of plausibility

about peak oil, climate change, overpopulation, the end of resourcesand economic calamity, but he encounters an invincible blind faith inthe certainty of progress. He is regularly told not to worry and that heshould take a holiday or consult a physician.The same phenom enon appears to be at work within our ruling classin relation to theTreaty.So far, anyway, there seems no consciousness ofthe possibility that the resu lts of racially inspired constitutiona l changecould be anything less than wholly beneficial. It would surely be a fairgeneralisation to say that politically acceptable discourse on the Treaty

focuses virtually entirely on what Treaty rights and obligations areimagined and alleged to be, and quite ignores the supreme practicalquestion of whether the world w hich could be fashioned to express thesefine abstractions m ight be workable or desirable. The Treaty is obviouslyso wonderful a thing tha t it is simply unthinkable that its consequencescould be anything but equally wonderful. And if they are not - well,Treatyists m ight just reply Fiatjustitia ruatcoelum. But the thoug ht tha tthe heavens might fall has not yet occurred to them.But in a spirit of openmindedness, your author asks his readers to

consider the possibility that all things do not automafically always w orktogether for good, and that not just the National Party but the NewZealand nation m ay have a tiger by the tail.V

Until recently, argument and popular disquiet concerning the Treatycentred on claims before the Waitangi Tribunal for the remedying ofhistorical wrongs. Some of those claims were valid, although m any weredebatab le. Some claims, although once valid, had a lready been settled inthe past, and w ere now being the subject of a full and final settlementfor the second or even third time. Some claims were, to the European


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claims settled by 2014, although it may not be realised, neverthelessdoes not appear to be impossible. An omnibus bill currently before theHouse and dealing with 3historical claims is strong evidence that thesettlement of historical claims is, for the present, at the final mopping-up stage. The outline of the fufure is already apparent, considering suchissues as indigenous rights , the foreshore and seabed (where it is notto be believed tha t the matter is now finally settled) and fundamenfalconstitutional questions.Now since our age firmly believes in the importance of individualsand their choices, and how no one size fits all, we might well acceptM ontesqu ieu's proposition that laws and constitutions inevitably differin order fo fit their nations and societies. In one of his best-rem emberedexamples he argued that when Montezum a ... insisted that the religionof the Spaniards was good for their country, and [Montezuma's] forMexico, he did not assert an absurdity; because in fact, legislatorscould never help having a regard to what nature had establishedbefore them. '* M ontezuma was obviously not thinking of the modern

reforming legislator; but leaving that aside, Montesquieu's argument isthat a society's culture is an organic growth which expresses the history,character and situation of a people. In fhe long run it cannot be createdout of the brains of rulersand philosophers, even if they were motivatedby the pure st generosity. It is not an artefact that can be consciously andartificially fashioned and imposed.Alfhough if is easier for legislators to impose law s than it is to imposecustoms, yet nevertheless laws also, if fhey are fo be accepfed andsuccessful, must be consistent with a society's deeply held beliefs and

understand ings. This argu ment can of course be used for selfishends.Itcan justify any status quo and frustrate any attem pts at reform. Catherinethe Great andawhole school of Russian polifical philosophers argued thatRussia, at least at that time in its history, had a spirit naturally inclinedto autocracy, and that representative institutions were inappropriateand would not work. Present day dictators use the same ai^gument.But then, present day practical observers who might hesitate to expressthernselves quite as Montesquieu did would nevertheless argue thatdemocracy will succeed only if certain practical conditions are fulfilled- fhe exisfence of an adequa te middle or propertied class, perhaps, andstable economic conditions, or at least ones offering some degree of


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Two Futures A Reverie on Constitutional Review 54 5

the abolition of rules on bed time. Russia's m elancholy history, for one,surely seems to offer som e evidence to sup port the claim that the spiritofits people is more naturally inclined to autocratic governm ent, whe therthe rulers be labelled tsars, commissars or even presidents. We can allthink of states where, withou t a strong man to bang heads together andimpose a brutal order, an even more terrible anarchy might well result.Such thoughts make uneasy thosewho,while valuing mulficulturalism(whatever exactly that means) still support democratic principles.

Democracy and multiculturalism are the two gods of our age; theircombat seems unnatural and terrible, and like that of an irresistible forcemeeting an unm ovable object. Which might prevail? What if a culture 'sway of expressing itselfis bygrowing and becoming dominant, and, withall the more confidence after its earlier demands were met, demandingyet more rights ? Does a civilised humane society have a right to say no to that culture? This is in the way of becoming a very importantpractical question in the future. How far exactly m ust our courtesy to theother, asahu m an being like ourselves, be extended? M ustit beextendedto the point of our society's surrender?The Maori Party's desired constitutional changes tend inevitablytowards racial definifion, and, following that definition,aprivileged statusfor Maori persons and institutions. This would be but a confirmationin writing - writing graven in stone, indeed , in a written constitution -of one of the most prominent developments in our politics and law inthe last several decades. That development, though, has never enjoyedpopular support. At best there was a widespread open-mindednessto the idea that if injustices had been done, as was now being loudly

and angrily claimed, then there should certainly be investigations, andsome recompense. Public patience has long run out on that argument,^and, as observed, the current focus of Maori agitation is no longer onhistorical injustices but on widerissues. Montesquieu m ight well arguethat current developm ents tow ards Maori privilege run contrary to NewZealand's national spirit. They run contrary to our very strongly heldcommitment to equality. Public support for the redress of real or allegedTreaty grievances over the last two decades has been founded on theargum ent that Maori in the past were somehow not treated equally ,whatever that might mean. Equality and egalitarianism are surely amongour most intensely held national feelings. Public support for growingMaori ambitionsisnot guaranteed, then; indeed, the principle of equality


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546 Otago aw Review (2011) Vol 12 N o 3

it does not like to see public assets privatised to anyone. Ever since ourEuropean ancestors came here determined not to recreate the classes andprivileges they had left behind, a dislike of privilege - even arguablyearned privilege - has been a strong strand in ourhistory.An egalitariandislike of the rich, especially the undeserving rich, is the other side ofthe coin of our egalitarianism. Our recent pioneer past and the brevityof our hum an h istory underlie our love of mountains and bush, beaches,sea and open spaces, which we hold to be fhe inherifance of us all, andnof something to be given away.Likely Treaty developments, in short, seem to contradict the spiritwhich has hitherto underlain and animated New Zealand society.^^ Agroundswell of resentment against the trend of Maori racial privilege haslong existed, and is almost certainly growing. Your authorhas,all his lifeand all over the country, found immensely widespread concerns aboufwhere the Treaty industry is leading us. Several devices have hithertobeen used to disarm criticism. For a good w hile the argum ent was putforward fhat once the current round of Treaty claims and settlementswas over, racial issues would disappear, and that Maori and EuropeanNew Zealanders would then be able to put the past behind them andmove forward together. The Treaty settlement process was (it was said)not one establishing racial privilege but only the righting of past w rongs,and anyone expressing doubts was of course therefore accused of racism.( Injustice wo uld surely have been a more logical accusation.) But theprophecy that after Treaty settlements were over everything would goonasbefore has not been fulfilled. What may have begun as a movem entfor historical andsocialjustice and political inclusion has become a drivefor the establishm ent of a racial and ind igen ous elite. Treaty claimsand settlements have receded from public view for the fime being, butracial agitation has not disappeared, m erely taken different forms. TheUnited Nations Declaration on the Rights of Indigenous Peoples hasestablished a good foundation for further agitation. Foreshore andseabed claims are presented primarily as a matter of legal right ratherthan as arising directly under the Treaty. Chris Trotter has described theIwi Leaders Group (ILG) as now negotiat[ing] with the New Zealandstate in much the same way as the great feudal m agnates of mediaevalEngland negotiated with their ki ng . (And, he continues, wh atSharpies' speech made very clearisthat the ILG will use the forthcomingconstitutional review to secure for the leaders oftheMaori tribes the sam e


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Two Futures A Reverie on Constitutional Review 547

sort of Magna Carta of aristocratic rights and privileges that the baronsextracted from King John at Runnymede in 1215. ) The forthcomingconstitutional agitation will obviously claim to be based on the Treaty,bu t is not a Treaty claim as that term has hitherto been understood ,and once the Treaty is within a constitution then future arguments forMaori privilege may very well be based as much on the constitutionor the law as on the Treaty .As Professor Elizabeth Rata writes:*^

[i]n the last five years there has been a shift in the strategies used by iwiin their quest for property rights and constitutional recognition. Theshift is from a Treaty of Waitangi justification to a more comprehensiveindigenous group rights argument. The group rights argumentisused toclaim custom ary righ ts and, in an extension, to claim that those customaryrights are property rights guaranteed und er English common law.Professor Rata considers much of the modern Maori political revivalto be an expression of a general widespread shift in the 1970s, seen inmany parts of the world, from class politics to identity politics, ratherthan as another very belated response to 19th century colonialism, andshe also perceives a great historical discontinuity betw een 19th cen turyMaori tribes and theirsoi disantheirs and successors. The real characterof contemporary iwi is that of an economic corporation concealed byneotraditionalist ideology.As yet, the doubts and resentments of non-Maori New Zealandershave found little political expression beyond bringing the ACT Partymore votes than it m ight otherwise receive and providing a convenientoccasional grandstand for Mr Winston Peters. We are not entitled toassume that that state of affairs will continue. The world is becominga harder place, where the generous welfare state we regard as part ofthe very nature of things will have far fewer resources at its disposalto meet the soaring demands of its increasingly hard-pressed citizens.A spirit of hardiness and frugality, a unity of purpose and a sense ofcomm on citizenship will be vitally important assets in such hard times.Any idea of indig eno us righ ts , however, is of its very na ture theenem y of equality of citizenship. A sense of racial separateness an dspecial entitlement based on a perceived superiority as an indigene, andcorresponding dem and s for separate and better treatment, are going toreceive short shrift in harder tim es to come. The English may be, as the


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VIIt is not an original observation that constitutions and constitutionaldocuments, certainly the most memorable and enduring of them, aremade at times of crisis in a nation's history. Magna Carta expressedEngland's grievances against King JoJin, as not only the barons but aFrench army were arrayed in England against a bad ruler. The greatconstitutional documents of the 17th century arose out of the drama ofthe long confrontation oftheStuarts with theirpeoples.The United StatesConstitution, our best known example ofafull written constitution, aroseout of the successful rebellion of tJie 13 colonies against their overseasgovernm ent. Many constitutions have been established at the end of awar, or when a nation attained independence. Such situations, obviously,make a new constitution a practical necessity; bu t it is also at preciselysuch times that a nation is likelier to have a clearer understanding ofwh at itisand w ha t form its future should take. Struggle and misfortuneconcen trate the mind wonderfully. In a nation whicli has been un ited intravail it will probably be much easier to find general agreement aboutgeneral outlines and structures than it might be in more settled times.By the same token, the worst t ime to embark on substantialconstitutional change would be when a nation is divided, or when anotherwise unexcited nation is liable to have constitutional provisionswhich itwilldislike imposed upo n it by a determ ined and vocal minority.Constitutions must be generally accepted, yet in such circumstancesgeneral acceptance is highly unlikely. Timing is everything. To start adebate when the circumstances of the time virtually guarantee that noconsensus will emerge - indeed, when positions will be polarised, anddifferent parts of the community will continue to grow in distrust anddislike towards each other - is not just a recipe for the failure of theconstitutional projectitself It is a recipe for strife.

Constitutions have a legal standing, but the best of them, anyway,are more than mere legal documents, for they express a people'sgreatest yearnings and aspirations. For all that they are rooted in legalparticularities. M agna Carta and the Bill of Rights cry out in one voice"Freedom ". That freedom wastobe rooted inlaw,certainly, bu t so m ustall freedom surely be. Such was the cry of the colonies who perceivedamong the inalienable rights of men "life, liberty and the pursuit ofhappiness". In the Declaration of Arbroath of 1320, six years after


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Two Futures: A R everie on Constitutional Review 54 9

make us or our kingdom subject to the King of England or the English,we should exert ourselves at once to drive him out as our enemy and asubverter of his own rights and ours, and make some other man whowas well able to defend us our King; for, as long as butahundred of usremainalive,never willweon any conditionsbebrought under Englishrule. It is in truth not for glory, nor riches, nor honours that we arefighting, but for freedom - for thatalone,whichnohonest man gives upbut with his lifeitselfSfanding beside such imperishable declarations, does not ourpresent constitutional review look to be not just utterly tawdry but anactual betrayal of fhe hum an spirif? As the princ iples of the Treatyare currently being interpreted to justify consfantly increasing Maoridem and s, there is no longer any chance that the Treaty can ever becomethe basis of equality or frafernity between Maori and non-Maori. TheTreatyis,now and for the foreseeable future, a source of acfual division.Our consfitufional review is not, therefore, jusf a modest, unexcifingbut nevertheless sensible review such as one might expect from anenlightened but modest and quiet little country. In one way or another,

then, the forfhcoming review is doomed fo failure. At the very least,noth ing will come of if by way of consfitutional change, bu t race relationswill besoured by thedebate.But itispossible that it will result in changes.To do that, of course, it will have to ignore the w ishes of the generalityof fhe New Zealand people, who have never displayed any interest inthe establishment of different sovereign entities in our country.

Overriding popular wishes would not however be difficult, and mostcertainly not novel, for the apostles of the Treaty movement, as it hasnow evolved - in which category w e can include many m embers of thepublic service and the universities - have seldom displayed any interestin liberty, equality or frafernity. Professor Jock Brookfield*'' could write anentire book' '' about relations betw een the Crown and Maori , whichcontains, until the conclusion, virtually no recognition of the existence,let alone the interests andclaims,ofthemajority of the populafion. In theconclusion they appear merely as an inconvenient and narrow -mindedpossible impedimen t to what w ould o therwise evidently be an amicableand unanimous final settlement with the Crown .**The Treaty, itseems,is now officially beyond discussion.Asmentionedabove, even the forthcoming constitutional review appears to begin


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55 0 Otago Law Review (2011).Vol 12 N o 3

New Zealand Treaty deba tes featured Tom Bennion from the Maori LawReview exploring the issue of the ow nership and use of the foreshoreand seabed with fellow-lawyer Matanuku Mahuika . In the seconddebate W haimutu Dewes and the Hum an Rights Comm issionerJorisdeBres consider[ed] how power might be shared between Maori and theCrown in the 21st century . Such debates are but political propag and afor one side, for the otlier side simply is not to be heard. In the firstdebate of the 2010 series Professor Paul Spoonley of Massey University articulate[d] the evolutionary nature of the last 40 years of Maorisocial and cultural change th rough a focus on the life and achievementof fellow-panellist Professor Emeritus Ranginui Walker . The secondsaw Professor Mason Durie, with social commentator Colin James,consider three alternative future scenarios which have New Zea land asa republic, as part of the federated states of Australasia and with M aorileading worldwide networks of indigenous people and businesses .*Mr James may have quietly expressed some very little reservations, bu ttojudge by his columns and comm entaries they would not be any morethan mild. Such, in the last two years of official radio debates , is the sumtotal of dissent from a worldview which, in the opinion of our officialtaxpayer-funded broadcaster, is initsessentials obviously beyond debate.

Asitsprim e m over the Maori Party conceivesit anyway, the purposeofthe constitutional review can be nothing less than the binding in eternalchains of other New Zealanders. For the officials of our government evento contemplate such a step obliges us, not for the first time, to wonderwhere their true loyalties lie. At Waitangi, Captain Hobson's famousdeclaration was He iwi tahi tatou - Now we are one people . If weare to believe the current wisdom, that was never intended, and (if itwere) was a bad thing.

VIIBut let us askasimple practical question: If the Maori Party agenda wereto be achieved, and New Zealand should be transformed from a staterun on its present lines to one where the various autonom ous h ap uwould work in partne rship with the Crown ,^ what would be wro ngwith that? Is change always so unthinkable? Is it not possible to imaginea country where Maori, charged with a new vitality as the result oftheir liberation from oppressive colonial structures, become a vigorous,


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Tz Futures: A Reverie on Constitutional Revieiu 551

justification for fhe generous full and final Treaty settlements of thelast two decades was that they would provide the opportunity andeconomic basis for M aori to turn their lives around. eare now perhapsto und erstand that that was a less than completely accurate argum ent -that in fact it is now the case (was this discovered very recently, or hasit been know n to Maori for some fime?) that only constitutional changewill deliver Maori the goods.But that aside, the point has its merit. The present state of affairs is

in many ways profoundly unsatisfacfory, and should not remain. Butthat is not to say that some proposals for change are unlikely to achievethe desired change, or at any acceptable cost. There is absolutely noevidence that the transfer of very considerable public assets and fundsto tribal claimants in the last two decades has done anything to stem thegrowth of crime and despair which now seems our ingrained in muchMaori life. These appalling social facts have appeared at the very sametime that New Zealand has been following policies alleged to p roduceexactly the opposite results.We are at present quite unaware of what it might mean in practice ifMaori cease to be subject to the sovereignty of the Crown, and insteadbecome somehow independent and tribally organised. Will they havetheir ow n territories, where all land will be theirs, and other landownerswill have been rem oved or at least must pay tribute to their new rulers?At the very least, presumably, they will not be subject, at least quite asother people are, to the Queen's laws. There is no obvious agreementamong M aori as to the precise details. That lack of agreem ent may be auseful th ing from the point of view ofapolicy ofdivide etimpera but may

serve only to fuel further discontent and make it likelier that any finalconstitutional arrangem ent that is arrived at may still be considered bymany Maori to be inadequate and repudiable.Whatever the details, the desired objective is towards some sort ofindependent life. Such a project, as well as being incredibly vague,complicated, and requiring immense administrative structures, suffersfrom another problem. Maori will insist on the possession of properresources. The only possible source of those resources will be theremaining assets of an increasingly impoverished and hard-pressed

non-Maori public.Independence cuts two ways. It would mean that non-Maori wou ld not


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welfare agencies, substantially outweighs any economic benefits thatpopulation might bring to New Zealand. Conceivably some of thoseexpenses might dim inish after M aori independence, but that can be nomore than speculation. Economics is not the principal end of existence,by any m eans, but w ithout m oney one's options are more limited. In anycase,the matter is a fundamental one that would have to be considered.Why would the majority of New Zealand's population - not hapu, butthe "Crow n's subjects", let them be called - why, just having seen theircountry carved u p, a process inevitably involving not only expense andinconvenience but also a great amount of unpleasantness, why wouldthey now be prepared to offer indefinite financial support to this new"independent" nation?Maori Treatyists have not yet worked out the contradictionswithin their own ideas. Your author has heard one prominent Maorispokeswoman announce at a political meeting that "Maori want twothings . They want independence - and they want more funding".^' Yetthese two things are incompatible. A desire for ind ependence must be

based on the idea that Maori can do better on their own; that they aresomehow oppressed or impoverished by their membership of the samestate as non-Maori, and they would be happier and better off on theirown. After the independence struggles, we may guess that the rest ofNew Zealand w ould be ready to take them at their word.Yetat the sametime "Treaty principles" are interpreted by many Maori spokesmen tomean, essentially, their entitlement to be supported for ever by the restof the population.It is not enough, it has been said, tha t statutes be w ritten so that good

men and women may understand them. A statute must be written sothat bad m en and wom en cannot misunderstand them. Itiseven betterifthey cannot evenclaimto have misunderstood them. Laws, as tThomasAquinas observes,''^ are made for a multitude of human beings, not allof whom are perfect. Constitutions must be included in this category.Dr Sharpies always speaks of the autonomous hapu "working inpartne rsh ip wi th the Crow n for the benefit of all citizens". Such talk ofworking together presupposes attitudes of positive cooperation w hichare not always evident in human affairs. Positive attitudes simplycannot be assumed. No constitution will last long if its workability isdepend ent on cooperative and generous attitudes. A constitution mu st


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Two Futures A R everie on Constitutional Review 553

would those other people want to help them?The Treaty movement has long been one heading in the oppositedirection from the American Civil Rights movement, ortheblack strugglefor freedom in apartheid South Africa. The Civil Rights movem ent wasone against a policy of separa te bu t equal , which was of course notequal at all, and it dem and ed the right to integrate into wider Am ericansociety. The South African strug gle was one against ho m ela nd sand, again, demanding integration into South African life. The Treafymovement, by contrast, is separatist and exclusive. Its slogan could w ellbe Separate but equal ; from the mouths of those who claim that theTreaty preserves Maori sovereignty over the whole country, the slogancould well be Separate and superior . It may claim partnership , andclaim to find it in the Treaty, bu t its attitude to partne rsh ip is that of amarital partner seeking a much-desired divorce - whichis,indeed, a fairdescription of the situation.It would be the grossest failure not just of statesmanship but ofcomm onsense to assume that any future age in which laws will operate

will be characterised by perfect goodwill such as has hitherto been rarein hu m an history. Why should the future be different, especially affer anunp leasant parting of the ways in a coun try which a lready is clearly onthe way tow ards being the successor to the PIIGS econom ies? Most ofthe time, most people are more concerned w ith their own interests thanwith the welfare of others, and laws operate in that climate of opinion.We would like to be thought charitable but our charity will go only sofar; especially when w e too are experiencing hard times.If the Maori aspirations of independence now being fanned by the

Maori Party are not fulfilled, there will be profound discontent withinMaoridom . If they are fulfilled, fhere w ill be much profounder discontentas Maori realise that the price of independence is foo high. Instead ofadmitting their error, however, it is surely far likelier that they will raisefurther demands, considering their continued dire social and economicsituation to be evidence that the Treaty requires non-Maori NewZealand to provide them with still more. We should not assume thatany constitutional settlement that may be reached hereafter will be thelast word. On the contrary, once an inch is given, an ell will be sought.Since constitutional law is more closely connected than are many otherlegal fields with the practical w orld of politics and the forces that shape


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lawyers and legal argum ents . In no other area of our national life wouldwe assume that the best way to deal with an immensely complicatedsocial and political problem, whose roots lie deep in history and whoseoutcomes, whatever they might be, would have profound effects onalmost every aspect of our national life, is best solved by handing thematter over to lawyers. But remarkably, none am ong these hard-headedlawyers seems to have questioned the assumption that handing morepower over to one particular interest group is certain to have onlybenign and beneficial effects on our nation. We would laugh aloud atthe suggestion that giving greater influence to farmers or manufacturers,say, or the elderly, the poor, the Business Round Table or the trade unio nmovement w ould do anything but allow such groups to further their owninterests at the expense oftherest ofus .Yet sofar very few commentatorsseems to take at anything less than face value Dr Sharpies' statem ent thatin his future plural society the various au tonom ous h apu will work inpartne rsh ip with the Crown for the benefit of all citizens .

VIIIYour author was recently e-mailed with a story which is both of concernand also so ordinary as to pass every day without comment. Thereis nothing unusual in what the emailer wrote; her experience can berepeated a hundred times a day in many parts of New Zealand. Shewrote after reading a column your autho r had w ritten inapopula r blog^ *and described her experiences ofapaper at her learn ing institution. Thereading material, shew rites,is very selective, and all her fellow studentshave been provoked by the material to rage at the injustices Maori have,evidently, continually suffered for 170 years. At a recent class studentswere obliged to write on the following quotation and question:

We can get the picture that in the mind of iwi Maori from 1840 to thepresent day there have been continual, ongoing, varied responsesand initiatives to clarify and bring to the attention of the Crown theirunderstanding of the agreement ofTeTiriti and their commitment to itasasacredcovenant Inthehearts and minds and reality ofiwiMaoriTeTiriti issues are not only a current situation but one they have workedat and on since 1840.Did you know this? How does it make you feel? Does it help youunderstand some of the current issues?


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Two Futures: A R everie on C onstitutional Review 55 5

grief and tribulation. Despite undoubted d isrup tion and adjustment andeven misfortune - although none as great as that of hideous defeat andmassacre in pre-1840 wars - many M aori have come to terms w ith theEuropean wo rld and have m ade decent lives of security, prosperity andcultural meaning in the New Zealand nation, or indeed even overseas.Even in the austere pages of an academic journal it is surely notimproper to ask a question of the utmost practicality. We have nowreached the stage in our national life whenthedivision of our country into us them is taken for gran ted, and one of those parties, a significantpropo rtion of the population, is now increasingly convinced that it hasbeen grievously w ronged. This is a developm ent of little more than thelast generation, and itisa worryingone.The evidence may eanecdotal,but there is abundant evidence that Maori claims are not going to endin the immediate future, but will continue indefinitely until social andeconomic circumstances make further generosity impossible.

We seem to have forgot ten that , the essay quotat ion abovenotw ithstan ding , th ings were not always thus . Jared Diam ond,contemplating the destruction of the very last tree by the Polynesiansettlers of Easter Island, who thereby destroyed their own manner ofliving, considered the question W hat did the Easter Islander wh ocut down the last palm tree say as he was doing it? ^ He answeredthat very probably, no-one would have noticed, for the memory of thevaluable forests of centuries before, which would have declined onlygradually, had succum bed to landscape am nesia . Each generationwould remem ber only the situation in its own you th, and since in eachgeneration the decline would be only little and gradual, a dramaticchange over several centuries could occur virtually without remark.In the same way. New Zealand 's increasingly polarised and bitter racerelations were not always so; they have appeared only gradually, andthe fact that this developm ent has occurred at the same time as policiesof misguided separatism and generosity will, illogically, be used as anargument that these very policies should be applied with redoubledvigour, since they will be said to have failed hithe rto only because theywere applied with insufficient determination. This division has beenpromoted by men and women with kind hearts and good intentions.That does not prove, though, that their policies are thereby guaranteedsuccess; all it proves is the truth of the o ld saying that the road to hell is


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55 6 Otago aw Review (2011) Vol 12 N o 3

that direction. Even abstract justice does not requ ireit and even if it did,fiatjustitiaruat coelumis a very foolish maxim. Those who u tter it do no tbelieve it. For they are quite confident that the heavens are not go ingto fall; or at least, not fall on them. But without a peaceful and orderedstate no hum anity, let alone generosity,ispossible. At the tim e of fhe 1998Ngai Tahu settlement certainvoiceswithinthetribe declared publicly thatwhat they were receiving was far less than they were justly entitled to,and that a truly just settlement would bankrupt the country.^'' But as asimple matter of logic this cannot beso.Toban krup t fhe country w ouldbe to condemn all New Z ealanders, including all other Treaty claimants,and indeed Ngai Tahu themselves, to misfortune and misery; and thatcan hardly be said to be a dem and ofjustice.It is time - it is indeed pasttime - for New Zealand to pause and ask itself if the direction of ourpresent policies is a wise one. It is not yet too late to step back from thebrink, bu t it may well be too late after any constitutional review rendersreturn up the slippery slope impossible. New Zealand has long prideditself in being the social laboratory of fhe world . We seem to hav eforgoffen that laboratory experiments do not always succeed.

Yetchange mustcome.Nothing written above should be takenasarguingthat ou r constitution in its presen t form will even be adequate, let alonebetter than any other, in enabling u s to deal with the challenges we shallface in fufure. The argumenf has merely been that the changes desiredby radical Maoridom, although perhaps good for them - as long asthey still get the funding - will not be good for anyone else, and donot accord with that spirit of the people and the laws with which anyconsfitutional arrangem ents must be in harmony. And yet, having saidthat, it may be that something along the lines of what Maori proposefor fhemselves might actually be good for us all. M odern evolufionarytheory suggests that much biological evolution occurs at the margins - atthose places and times where populations are under stress and where,therefore, natural selection and evolutionary development are likeliestto occur. No such incentives to evolve exist where populations arecomfortable and secure in their present state. In the same way, it maybe that the best ideas we have for the future may be found nof amongthe political parties of comforfable majorifies, but among those at themargins, where old complacent ideas are tested and found wanfing. It


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