THE SESAME STREET SYSTEM

In 1986, the Royal Commission on the Electoral System reported damning disparities between the European / General and the Māori electorates. The Ministry of Justice updated those findings in 2009 and they aren’t any less damning, but they do remind me of a standard Sesame Street song sung by Big Bird.  Can you guess which one before you finish this column?

VOTING RIGHTS:  Europeans were able to vote from the first election in 1853, while Māori had to wait until 1868.  The right to vote in national liquor licensing referenda was granted to European electors in 1911, but Māori electors had to wait a further 38 years until 1949 for that same right.

VOTING METHODS:  Voting by show of hands in the European electorates was discontinued in 1870 in favour of a compulsory secret ballot.  But show of hands voting was continued in the Māori electorates for a further 40 years.  And even then it wasn’t replaced with a compulsory secret ballot but with a declaration to a Returning Officer, which was hardly secret. It wasn’t until the introduction of the 1937 Electoral Amendment Act that Māori were able to finally vote by secret ballot; 67 years after Europeans.

ENROLMENT:  The electoral option which allowed Māori voters to choose to enrol on either the European/General roll or the Māori electoral roll, was introduced in 1975.  The same choice has never been foisted on European voters.

The first European electoral roll was prepared in 1879, but the first Māori electoral roll wasn’t prepared until 1948.  Enrolment/registration of European voters was made compulsory in 1924, three years before my father was born.  For Māori it was finally made compulsory in 1956, the year I was born.

CANDIDATE RIGHTS:  Since 1975, Māori have been able to stand for European electorates and Europeans for Māori electorates.  On the surface this looks equitable, but when placed in context it’s too little, too late.

DETERMINATION OF ELECTORATE BOUNDARIES AND NUMBERS:  Five yearly reviews of electorate boundaries for European electorates were started in 1887.  But it took almost another century before the electorate boundaries of Māori electorates got the same five-yearly review, starting in 1981.

In 1950 the general population (including children) replaced the adult population as the basis for determining European electorate boundaries.  That didn’t happen for Māori electorates until 1975. And between 1950 – 1975, Māori children in the electorates were included in the European population.   From 1950 onwards, the number of European electorates was based on the European population.  In contrast, the number of Māori electorates remained unchanged at four until 1993, regardless of Māori population size.

CONSTITUTIONAL STATUS:  Constititional protection for European / General electoral system provisions was entrenched in law in 1956, and again in 1993.  In contrast, the entrenchment in law and constitutional protection of Māori electoral system provisions still do not exist.

Big Bird is right. One of these things is not like the other.

TRANSFORMATION IS UNDERWAY

Under New Zealand law, non-Māori are entitled to go to court to determine damages and restitution where their property has been wrongly taken.  But the Waitangi Tribunal’s 2013 Ngāti Kahu Remedies Report now makes it clear that because of current government policy, Māori don’t have the same legal entitlements to damages and restitution as non-Māori. In fact this particular Tribunal says that to make such provision would overturn current constitutional principles.

The fact that Māori have no constitutional security in this country was one of the most serious concerns expressed in two reports issued by two different special rapporteurs from the United Nations in 2006 and 2011. The hostility and vehemence of the Tribunal’s and the Crown’s reaction to Ngāti Kahu formally challenging the legitimacy of those constitutional arrangements reinforces how unsafe they remain for Māori.

The same challenge has been posed by Ngāpuhi and it will be interesting to see if that Tribunal is as hostile to their claim for He Whakaputanga o te Rangatiratanga o Nu Tireni and Te Tiriti o Waitangi to be recognized as the constitutional basis of this country. Certainly the independent report from those hearings, Ngāpuhi Speaks, overwhelmingly supports such recognition.

In 2010, Matike Mai Aotearoa, the Constitutional Transformation Working Group set up by the National Iwi Chairs’ Forum and led by Moana Jackson and Professor Margaret Mutu, began addressing the exact constitutional inequities and inadequacies that the Ngāti Kahu Remedies Report has highlighted. Their mahi is to draw up a model for a written constitution that would see an end to such discrimination.   

To date, they’ve conducted over 100 hui throughout the country.  Each hui has confirmed current constitutional arrangements are severely detrimental to Māori.  They have also broadly agreed that these arrangements must be transformed into a written constitution which must incorporate mana, tapu, whanaungatanga, manaakitanga, kaitiakitanga and other values that are based on the founding documents of this nation; He Whakaputanga and Te Tiriti.

Matike Mai Aotearoa will complete their initial round of hui by the end of April 2013, and analysis on the questionnaires completed at each hui is already underway. In May they will start work on the model for a constitution, after which a further round of hui will be held to take the model back to the people.  Their final report is due with the National Iwi Chairs’ Forum by November this year.

After that the hope and expectation is that the country as a whole will enter into a long, informed and thoughtful discussion and debate on future constitutional arrangements for this country.  Given the work of Matike Mai Aotearoa, the politicisation of Māori in general, and the Crown’s failure to similarly engage with non-Māori, the probability is that it will be led by whānau, hapū, iwi and other Māori groups throughout the country.

In any event transformation is under way.

A PRAGMATIC REPORT

Last year Ngāti Kahu sought a total relief package for the prejudices caused by the Crown’s breaches of Te Tiriti o Waitangi, as proven in the ‘Muriwhenua Report 1997.’  Yesterday the Waitangi Tribunal released the ‘Ngati Kahu Remedies Report 2013’ in which it has made some very strong recommendations.  However none of them is binding.  That will be extremely disappointing to Ngāti Kahu, but it is totally understandable.  Since 1997 the Tribunal has lived with the constant threat that if it ever issues binding orders, the Crown will change the law to remove its powers. 

This threat is part of the literature and was covered by Paul Hamer in his article 'A quarter-century of the Waitangi Tribunal: Responding to the challenge' which appears in the book, The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi.  The threat itself is a clear breach of the rule of law and seriously undermines the Tribunal’s credibility.  Nevertheless the Tribunal generally produces useful reports.  This one is no exception. 

In a major departure from past decisions the Tribunal says in this report that, while a complete settlement between Ngāti Kahu and the Crown is preferable, it recommends a partial settlement.  This is in line with Ngāti Kahu’s deed of partial settlement which the Crown had earlier rejected. 

And in another departure the Tribunal also says a partial settlement should still be completed, even if Ngāti Kahu and the Crown can't agree on an ‘historical account’, Crown ‘acknowledgement’ of Treaty breaches, and Crown ‘apology’.  This is important because these are where the Crown has in the past laid the foundation for settling claimants to cede their rangatiratanga as a condition of settlement; something which has always been a deal breaker for Ngāti Kahu.

Although the Tribunal refuses to recommend any compensation in this report, this is unlikely to faze Ngāti Kahu who have consistently focused on land rather than money.  Additionally the lack of compensation has contributed to the Tribunal’s recommendation that any settlement could only be partial. 

At the same time it provides details of every block of land it recommends the Crown relinquish.  This means, if they wished to do so, when relevant hapū repossess their lands, they can do so in the knowledge that they now have two Tribunal reports confirming their ownership.    

Interestingly, to accommodate the Crown's ransom demands for lands it relinquishes, the Tribunal recommends that it make $20.736m cash available to Ngāti Kahu to pay that ransom. That’s 10% less than the $23.304m offered in 2008.  But again this is to accommodate the partial nature of any settlement, and is offset by a recommendation that the ransom also be reduced significantly.

The Tribunal also recommends that Rangiputa and Kohumaru be returned to Ngāti Kahu rather than to Ngāti Tara and Te Paatu.  Likewise it recommends that the Kohumaru blocks within the Ōtangaroa forest be returned to Ngāti Kahu rather than kept intact for inclusion in a return to Whangaroa. 

The space limits of a column don’t allow a full coverage of the Tribunal’s recommendations.  But overall it’s clear that they have taken both Ngāti Kahu’s deed of partial settlement and the Crown’s settlement policies into account, and have drafted a very pragmatic report.   There will be some who are disgusted with it.  However it contains some real gems for Ngāti Kahu.  I expect their negotiators and those of the Crown will now be carefully anyalysing it.  How they respond will be very interesting.