Joel Maxwell: Here’s how ACT gets a Treaty principles referendum regardless of what the PM says

Monday, 14 October 2024

Joel Maxwell (Te Rarawa) is an experienced senior journalist and Stuff’s kaiwhakamāori/translator.

OPINION: When Prime Minister Christopher Luxon says this far, and no further, can we believe it?

ACT proposes to replace existing Treaty principles with ones passed in Parliament, subject to a binding referendum.

The PM says National will not support the Treaty Principles Bill past the select committee (public consultation) stage. This would end the bill, but satisfy the coalition deal.

Honestly, I never gave the whole debate much thought because I couldn’t get past stage one: that replacing the existing principles like this would be so socially destructive it should never even be considered. It would be like debating whether eating a Tide Pod is better with Dijon or old English mustard.

But this coalition government has done much to undercut our trust. Particularly for Māori. So we should not assume that the Treaty Principles Bill, or its underlying intentions at the very least, will die.

Here, I’ll deal with trust and the Māori perspective, then I’ll explain how we could still have some kind of Treaty principles referendum regardless of what happens with the bill.

Firstly, here’s a shortlist of my personal faves when it comes to coalition whoopsies on trustworthiness.

I was shocked to see plans to unravel the smokefree law in the coalition deals. For this column I asked Professor Lisa Te Morenga, co-chair of Health Coalition Aotearoa - experts in this field - whether, pre-election, they were aware it was even up for grabs: “I think it came as a shock to everyone,” she said.

Nowadays I’ve lost track of Associate Health Minister Casey Costello as she lurches through tobacco policy-setting. The last I heard she didn’t know who wrote a list of ideas that floated off her desk to the Ministry of Health to help develop policy - or even how it got in her office.

Announcing the Health NZ board sacking and the search for $1.4 billion savings in July, PM Luxon hit out at its 14 layers of middle management - implying they were ripe for some Marie Kondo-style decluttering. The only problem is, as The Post reported, there doesn’t appear to be 14 levels. I congratulate them for trying to include patients as a management level though.

And of course there is the Treaty Principles Bill itself.

As Opposition leader Luxon told Stuff on March 29, 2022, he did not support a Treaty referendum on redefining its principles. On October 10 that same year he told Stuff that National did not support a referendum. He told RNZ on August 22, 2023, that “it’s not our policy and we don’t support it”. In a statement from his staff for a story I wrote last year, they pointed me to his previous statements that he did not support it.

Then, on November 23, as per the newly formed coalition government’s agreement, National supported the bill - but only through the select committee process.

People dismissed the ACT policy as a non-starter. But all Luxon’s statements were nothing but firmly worded vibes in a game of chicken with an actual Humvee.

Let’s take a look at this from a Māori perspective or, more specifically, from this Māori’s perspective.

Kāhore e kore - ki tōku nei whakaaro - kua patu mai te kāwanatanga haumi i a tātou o ngāi Māori me tō tātou ahurea me tō tātou reo rangatira noki. Ka whakahē koe i tēnei? Hei taunaki:

Undoubtedly, in my opinion, the coalition government has been bashing Māori, our culture and our language. Don’t agree? Consider this:

Ko ngā pōtitake wāri Māori i whakahokia. Kua whakakorea Te Ahu o te Reo Māori. Kua whakakorea Te Aka Whai Ora. Kua whakakorea Ngā Wai e Toru me ōna whakaritenga kāwana-ruatanga. I whakawhitia ngā ingoa Māori, Ingarihi i ngā manatū kāwanatanga. I mukua ngā herenga Tiriti i te ture Oranga Tamariki. I poroa tā Whakaata Māori tahua. I whakahaua te muku, parahau rānei i te whaiwhakaaro ki te mātāwaka i roto i te whakarato o ētahi ratonga tūmatanui.

Referendums on Māori wards were returned. Te Ahu o te Reo Māori was axed. Te Aka Whai Ora was axed. Co-governed Three Waters was axed. Māori names for ministries were flipped with the English ones. Treaty obligations were wiped from the Oranga Tamariki law. Whakaata Māori had its budget slashed. Use of ethnicity as a factor in some public service provision has to be wiped or justified.

Mōku ake, ina pānui koe i tēnei rārangi ka hūtia ngā huruhuru pea kia whakaatu i te kikokiko e hīnawanawa nei o tō te kāwanatanga whakaaro matua: ki a rātou, tē hiahia te tū motuhake o tētahi mātāwaka i runga i ētahi atu i tētahi manapori ‘tika’ (hāunga kei raro e putu ana tō tātou mātāwaka i ngā tatauranga kino katoa); engari, auē, te hiahia o tērā kāwanatanga ki te karo i tō rātou haepapa kia patu i te tautika-kore…

For me, to read this list is to have the feathers plucked on the goose-pimpled flesh of the government’s central idea: to them it is undesirable for one ethnicity to have special status in a ‘proper’ democracy (notwithstanding our particular ethnicity is smashed in all the bad stats); but, sheesh, that same government’s desire to dodge their responsibility to actually give inequity the bash…

Ko tāku, he urupare ki ā rātou mahi: E kore au e ngaro; he kākano i ruia mai i Rangiātea.

I’ve got a response to their mahi: I shall never be lost, I am a seed sown from Rangiātea.

Heoi anō, speaking of Rangiātea, I thought it would be useful to fill up my own kete of knowledge by hitting up some experts on if and how the bill - if not its intentions, spirit - might survive past the select committee.

Writer, researcher and adviser Dr Rawiri Taonui said he thinks at this stage we can hold National to its word on the bill.

But Taonui is worried that, longer term, “the shadow in the background” is the risk that ACT builds enough momentum to get some kind of binding referendum. That would be a shame, he said, because the progress to date had been arduous, incremental.

“You have to climb mountains to achieve small goals but once we get there and down the other side, the Pākehā we work with realise that’s what they should have done all along.

“And that’s why I think the vast majority of councils voted to retain their Māori wards because it works really well,” he said.

“It just takes a hundred years to get there.”

Lawyer and electoral law expert Graeme Edgeler said Luxon’s statements left little scope to move on the bill.

“Referendum, no referendum, completely change the principles, clarify some things, still leave parts up to the courts, whatever… I think it would be a reversal of National’s position.”

But there was another “somewhat likely” possibility, he said. And this is how we could get a referendum even if the bill fails.

1. The bill dies after the select committee.

2. But thanks to the select committee process, ACT now has draft legislation with fine-tuned Treaty principles. They use that to draft a referendum question, and ACT or a group like Hobson’s Pledge, or both, force a citizens-initiated referendum. They have a year to gather 10% of eligible voters’ signatures to trigger it.

3. ACT pushes National and, as a result, Cabinet agrees to hold the non-binding referendum alongside the next election - boosting referendum participation.

4. If National and ACT are in the position to form the next government then ACT won’t be asking for another referendum. “They’d be saying we went to the people, they voted and 60% [for example] of people said they support these principles being legislated for. Let’s do it. And at that point, National might agree,” Edgeler said.

Even if the bill dies, ACT keeps the issue alive for the rest of the term, and leaps into the next with the referendum under its belt.

Professor of Politics and Māori Studies at Te Herenga Waka, Maria Bargh said scarce Māori time and energy was being used up when “there’s no problem needing to be solved here”.

She wondered why the select committee is six months long when it could have been four days, or even shorter. Then there’s the fact that the process could help drum up support for a citizens-initiated referendum (an idea she raised independently of Edgeler’s suggestion) as well.

Either way, she said, select committee progress will end just in time to lead into council elections next year, where referendums will be held on Māori wards. And then some of that rhetoric can flow into the general election the following year.

I think it’s unlikely that the bill will survive past its second reading in Parliament. But then again, National didn’t even want it to come this far. Either way, we should prepare for some kind of referendum.