Anatomy of a hot potato: David Seymour and his Treaty referendum policy

Thursday, 7 November 2024

This story was originally published in the Sunday Star-Times in October last year, shortly after the General Election. It is being republished today as the Treaty Principles Bill is introduced to Parliament this afternoon.

Ahead of a likely National-ACT coalition Eugene Bingham investigates where ACT leader David Seymour’s calls for a referendum on the Treaty of Waitangi came from. The answer, he finds, is not necessarily straight forward.

David Seymour wants to talk. It’s just a few days after the election, the negotiations to form the new government are but negotiations about negotiations, and party leaders on the political right are cautious about saying too much in public.

But Seymour is on the phone, speaking about ACT’s stance on the Treaty of Waitangi and its demand for a referendum on the issue – perhaps the hottest of hot political potatoes sitting on the negotiation table.

And he’s not holding back.

He compares his position to that on abortion rights; he has a crack at the Supreme Court; and he fends off warnings of violence if the referendum goes ahead by saying the country has an “unthinkable” future as an “ethno-state” if the direction of Crown-Māori relations isn’t changed.

But mostly, he wants to make it clear the policy hasn’t just been dreamed up.

“I hope I’ve got across that this isn’t something that we woke up one day and thought, ‘We’ll get some votes’. This is very serious,” he says.

In the phone call, he emphasises how much he believes in the policy; he explains why ACT is sticking with it despite the controversy and criticism it attracted on the campaign trail and afterwards; and, in doing so, he also perhaps reveals a bit of what we might expect from Seymour in government.

Interviews with politicians are often nailed down in advance. You’re told when it will be (or at least roughly when to expect a call), and there are sometimes back-and-forths about what it is you want to talk about.

But on Tuesday evening, when the phone rings out of the blue, it’s Seymour responding to an email sent to his media spokesperson.

The Sunday Star-Times had asked what had changed since 2016 when Seymour spoke in very different terms about the state of race relations.

In an RNZ interview about Hobson’s Pledge which had just been formed, fronted by former ACT and National leader Don Brash, Seymour talked about the importance of realising political events happened in a context.

He compared 2016 to 2004 when Brash gave his famous “Ōrewa speech”, and the country was divided over the foreshore and seabed debate.

“Now, here we are 12 years on, at least two members of my family are currently attempting to learn Māori … that’s how times have moved on. You’ve now got mainly white middle class people who are embracing Māori culture – a very different environment from what we faced in 2004.”

And that wasn’t an aberration. In 2014, during an interview with the Listener, he spoke out about previous ACT campaigns around Māori issues. “I reject, for example, having a newspaper advertisement that says, ‘Sick of the Māorification of Everything?’ That was disgraceful.”

Seymour told the Listener he considered leaving the party in 2011 because of that ad. He expressed disdain for how previous leader Jamie Whyte had played the race card in the 2014 election.

To listen to that Seymour, is to listen to someone who is optimistic about the direction of Crown-Māori relations, and seeking to take ACT in a different direction.

And when you look through his public speeches and his social media from 2014 (when he first entered Parliament) to 2020, there are very few references to co-governance or the Treaty.

In his maiden speech, Seymour (who has whakapapa connections to Ngāpuhi) gently warned against creating racial distinctions in law.

“I refer to those who claim that the only way to achieve a material equality between the Māori side and the British side of my ancestry is to create more legal inequality. No doubt they have noble intentions, but public policy should be measured only by results.”

The most het-up he got was in a 2017 speech about a resource management amendment giving power to iwi in local decision-making, calling it “a substantial departure from our usual constitutional arrangements. It is, effectively, introducing co-governance to the entire country, and that is wrong.”

But then … not much. It just wasn’t an issue for ACT in the 2017 or 2020 elections.

And, then, in 2021, it burst into life. In February that year he stood in the House to speak out against interpretations of the Treaty which couched it as a partnership.

“Let’s just think about what that means,” Seymour said. “On the one hand, the Treaty can mean we’re all people with the same rights and duties as each other; and on the other hand, it can mean we’re two collectives.”

There were frequent social media posts and comments over the next two years.

And at the ACT conference this year, he railed against the proliferation of te reo Māori (which he himself and relatives had spent time learning), saying the language had been “weaponised as a tool the minority forces on the majority in every forum”.

Seven years on from those comments on RNZ, then, Seymour’s public comments have certainly heated up, although he would have it that it’s not him who has changed.

He points to various areas where he says things have gone too far – including the Supreme Court which last year ruled on tikanga and tapu in the Peter Ellis decision.

“The idea that the Supreme Court of New Zealand is writing this kind of piffle is terrifying,” says Seymour.

They are strong comments – the kinds he might not be able to make if he ends up a government minister and is bound by Cabinet Manual rules restricting what the executive branch of government can say about the judiciary.

But Seymour is not yet hemmed in by such considerations.

Looking back to the time of his RNZ comments, he says: “It really did feel like race relations were going in the right direction, and there were a lot of people including me at the time who felt like it was all going to work out.

“Whereas it hasn’t felt like that for about five years – and that’s a major problem.”

But if things aren’t good, shouldn’t Seymour and other politicians who have made an issue of the Treaty take some responsibility?

After all, there have been warnings this week from Te Pāti Māori’s John Tamihere and the Greens’ James Shaw about the possibility of violence if ACT’s Treaty referendum goes ahead.

Seymour pushes back. “Let’s say New Zealand policy-making continues in the current direction and we gradually move away from a nation with citizens who each have a basic set of rights and duties to what I’ve described as an ethno-state where in order to have certain rights and duties you also have to have the right ethnic background. Well that’s just an unthinkable future for New Zealand, and so it does actually need to be discussed and debated.”

He says it’s hard to have a debate, though, because of accusations of being racist or anti-Māori.

He’s not, he says. And nor, he says, is he against the idea of improving Māori health outcomes, for instance.

To explain what he means, he says: “Most people who are pro-choice on the question of abortion … it’s not that we like abortions, it’s just that we think the prohibition of abortions is wrong and has far worse effects than not prohibiting it. And similarly, it’s not that we don’t want to see more equal opportunity, it’s just that we think the particular remedy won’t actually achieve better outcomes.”

He says what changed for him in 2021 was the Three Waters debate, the He Puapua Report, and the creation of Te Aka Whai Ora, the Māori Health Authority – in other words, he points the finger at the Labour government.

“If you look at 2016, it would have been difficult to imagine the government would effectively divide the administration of healthcare into two parallel entities.”

Ben Thomas, a consultant and political commentator, including for The Post, has seen the development of government Treaty policy and Seymour’s campaigning style up close, having worked for National’s treaty negotiations minister Chris Finlayson, and on the 2017 ACT election team.

And he can see how Seymour justifies shuffling the blame over the emergence of co-governance as an issue.

“The Ardern government’s handling of it was unconscionably bad,” says Thomas.

Thomas is not even convinced Labour had an actual co-governance strategy in the first place – more that they created conditions where opponents could force the issue and stir controversy.

He talks about the actions of “bad faith actors”, though he does not believe Seymour was one – more that he took advantage of the situation.

“It was a failure of leadership by Labour which created this uncertainty,” says Thomas. “There was never a co-governance agenda, there was never a co-governance programme … it was something that was dreamed up by people – I’d probably say who were bad faith actors – who joined up the sort-of rambling think piece He Puapua with the Three Waters policy – which was an example of co-governance – and the the Māori Health Authority which was not co-governance, it was an attempt to better-target health services.”

To understand why Seymour stepped into this mess and took advantage, says Thomas, you need to look back at the aftermath of the 2019 Christchurch mosque attacks.

Until then, Seymour had stuck strictly to ACT core policies. But afterwards, he was the only MP to stand against the gun reforms and he spoke out against moves to crack down on hate speech – and was rewarded with a bump in the polls.

Thomas is not suggesting Seymour did not believe in those stands – individual responsibility and freedom of speech are libertarian values. But he was straying outside the core policies he had previously prioritised.

“And that’s when they started showing up in the polls and getting over 1% consistently,” says Thomas. “I think that was probably where they started to see that there were openings in the political landscape for issues they had maybe neglected for more high-minded things in the past.”

He says Seymour has become more politically adept over the years, but you couldn’t say he was a straight populist.

“I don’t think he would ever run on anything that he couldn’t justify to himself using his own principles and his own sense of internal logic and coherence.”

Not that Thomas agrees with the Treaty policy – “it’s misguided and I think it would be extremely negative for the country.”

An ACT insider, who did not want to be named, remembers there was a sense of awkwardness about stepping back into Treaty issues.

“There was certainly a realisation that we’ve got to stand up for what a classical liberal direction of the country means. It was kind of foisted upon us and there was that awkward moment where it was like, ‘We don’t like talking about this stuff, that’s why we haven’t talked about this stuff for a while’ …

“But with Three Waters it was just appearing everywhere and it was like, ‘We just can’t keep quiet any more’.”

Pollster and centre-right pundit David Farrar says over the last few years, co-governance and the Treaty have certainly emerged as issues, though not necessarily main ones.

“This became an issue not because any party said, ‘Hey, I think we can pick up votes this way’,” says Farrar. “I think it was responding to their supporters who were saying, ‘Hey we really care about this’.”

While co-governance never gets above about 3 or 4% in polls on what issues are concerning people, it’s an important “secondary” issue.

“There is definitely quite a significant proportion of people who are worried about the nature of our democracy, that if the Treaty is equal partnership, what does that mean?”

Farrar does not believe Seymour picked up the policy and ran with it just because there were votes in it.

“Classical liberals, as David self-identifies, do put a lot of emphasis on equality and I think that’s a prism it’s viewed from,” says Farrar.

“I think as always though you need to understand New Zealand’s unique history and within that recognising equal doesn’t mean you can’t devolve services, and doesn’t mean Treaty settlements can’t give rights.”

Which is where it can become confusing to hear Seymour speak out against co-governance – but then say he supports agencies such as Māori service providers, or the Tūpuna Maunga Authority, a co-governance arrangement between Auckland Council and mana whenua established by a Treaty settlement in 2014.

The ACT insider says this is where Seymour did not manage things well in the campaign.

“I think when he gets into the weeds on these issues it can be really nuanced and I think the general public don’t quite get the nuanced side of things,” says the insider.

And, make no mistake, it was Seymour himself who was at the helm of the policy.

There were policy advisers and advice sought from outside, but Seymour took the lead.

Seymour confirms outside advice was sought, but won’t say who from, though he’s happy with “the calibre of the people we discussed it with”.

The ACT insider says it will be interesting to see how Seymour handles the issue from here and doesn’t expect him to give up on it easily.

“One thing I’d say about David and this particular topic is he’s obviously very careful and he doesn’t want to be called racist himself, and he’s also quite an obsessive personality and very, very driven. He’s a rather complex person.”

Te Huia Bill Hamilton would probably agree with that assessment.

Earlier in the year, the spokesperson for the Iwi Chairs Forum and Treaty educator had a Zoom meeting with Seymour.

“I thought, ‘I want to find out what the heck he’s on about’,” says Hamilton.

“I’m a really, really patient and tolerant person … but he really frustrated me and it was difficult to have a proper conversation with him.

“He said to me things like, ‘I’m an intelligent man and I’m in this because I know what I’m doing’, and I tried to give him credit for that.”

But in the end the conversation ended without going anywhere, and they agreed to differ.

“I found him to be so … ignorant [and] a bit judgemental … but he was really, really difficult is probably the best way of putting it.”

Is that what we can expect of Seymour in government? Does that mean he will insist on the referendum?

Ben Thomas is not so sure.

“There are always compromises to be made, that’s what politics is,” says Thomas.

“As a minister you’ve only got so much time to do things and if somehow the referendum got over the line, then it would suck all the oxygen out of a first-term government and it would be a constant fight.”