The laws of the land should come at the end of the political process, not at the beginning. The vexed question of Crown/Māori co-governance, with all of its profound constitutional implications, is opening up deep divisions in New Zealand society precisely because its promoters are determined to embed it in law without first submitting it to the rigors of democratic scrutiny.  This is a bold and, some would say, reckless strategy but it is far from being a new one. Ever since the 1980s, our politicians and public servants have been content to toss the political hot potato of Māori-Pakeha relations into the lap of the judiciary. Rather than confront this most difficult of issues head-on, the people’s representatives have relied upon unelected judges, tribunals and bureaucrats to do their job for them. The Americans tried this in relation to the vexed question of slavery in the 1850s. What they ended up with was the Dred-Scott decision of the US Supreme Court, a judgment which made the American Civil War (1861-1865) inevitable. Some might argue that our own Dred-Scott decision was delivered by Lord Cooke of Thorndon in 1986 in his celebrated judgment fleshing out the principles of the Treaty of Waitangi and describing the relationship it established between the Crown and Māori as ‘akin to a partnership’.  As the years passed, and as successive generations of politicians continued to shy away from confronting directly the constitutional implications of Lord Cooke’s principles and partnership, inevitably they morphed into a rough user’s guide for parliamentarians charged with giving legal effect to Māori claims. It is difficult to avoid the suspicion that the politicians of both parties were more than happy to allow the judiciary, the quasi-judicial Waitangi Tribunal and the fearsomely bureaucratic Office of Treaty Settlements (OTS) to carry the burden of shaping the structure of Crown/Māori relations in the 21st century.  Arguably, it was in the interests of both major parties to remove the potentially explosive issue of race relations from the brutal arena of electoral politics, not least because the latter showed every sign of delivering inconvenient answers to questions most senior politicians now deemed too sensitive for resolution by majority votes.

Extreme opinion

The dangers attached to debating the meaning of the treaty and the future of Māori-Pakeha relationships outside the tightly circumscribed environment of the courts, the Waitangi Tribunal and the OTS were exposed in the brutal election campaign waged by the Don Brash-led National Party in 2005.  Alone among the leaders of the two main parties, Brash was unwilling to allow the political logic of Māori nationalism to pass unchallenged into the DNA of the body politic. Had Brash defeated Helen Clark (herself no fan of the Māori nationalist ‘haters and wreckers’), the government he led would have unwound everything that followed New Zealand Māori Council v Attorney-General. Nowhere was this determination to keep treaty matters beyond the reach of the voters more jarringly on display than in the triumphalist remarks of the Rt Hon Sir Geoffrey Palmer QC.  In a paper entitled Māori, the treaty and the constitution, delivered to the Māori Law Review symposium on the Treaty of Waitangi and the constitution held on 12 June 2013, the politician who served the original ball to Lord Cooke in 1986 declared: “Insulation from the ravages of extreme opinion has been achieved. The settlements have become mainstream.” Nine years on, Palmer’s confidence that ‘extreme opinion’ has been successfully frozen out of the treaty debate is beginning to look misplaced. Had the decolonisation process demanded by Māori terminated with the treaty settlements – as both Labour and National hoped it would – mainstream New Zealand would, indeed, have breathed a sigh of relief and embraced its outcomes with pride.  But, as the late Moana Jackson and his fellow constitutional revolutionaries made clear in the years following Palmer’s address, the process of decolonisation had only just begun.

Treaty-related change

What has never been particularly clear, however, in relation to decolonisation, was how its proponents proposed bringing it into being.  On the face of it, the radically different society that was bound to arise in Aotearoa-New Zealand if the full social, economic, political and cultural logic of tino rangatiratanga was translated into the nation’s institutional arrangements – essentially ‘co-governance’ – could emerge only out of a full-blown revolution. This was not a possibility immediately obvious to the country’s political scientists. But there was another way. Blindingly obvious in retrospect, it emerged only slowly from the close observation of how treaty-related change unfolded in New Zealand society. In the absence of a formal written constitution, bi-partisan agreement on key issues became the de facto test of whether or not significant constitutional change could take place. After catching a glimpse of the abyss into which New Zealand was likely to fall if Pakeha politicians attempted, à la Brash, to wind back the historical clock and, once again, make the treaty ‘a simple nullity’, both National and Labour reverted to their earlier reliance on the courts, the tribunal and the OTS.  Not surprisingly, these latter bodies have been granted considerable latitude by the nation’s leading politicians to determine the future shape of Crown-Māori relations. Politics, like nature, abhors a vacuum. This was the way Māori could construct their decolonised constitutional edifice one brick at a time. So long as both National and Labour accepted the jurisprudential and academic wisdom of their politically insulated advisors, and refused to play the race card, progress along the decolonisation road would be made – incrementally and relentlessly. This was the true significance of the He Puapua report: not that it supplied the Labour government of Jacinda Ardern with a blueprint for change but that it demonstrated persuasively how her government’s – or any government’s – blueprint for change could be transformed into reality.

Catch-22

No revolutionary explosions required, only the slow but steady roll-out of measures weighed carefully, and approved, by the wise men and women of the judiciary, the tribunal, the public service and the universities. Measures relatively easy for politicians and journalists to understand – and defend. Measures which, if halted – as they almost certainly would be by the referendum on co-governance proposed by Act’s David Seymour – would call into being precisely the revolutionary conditions they were intended to avoid. It’s New Zealand’s very own version of Catch-22. Attempt to halt by stealth the decolonising revolution that is already underway – the New Zealand history curriculum, Three Waters, the Māori Health Authority – and you will conjure up a racial conflagration 10 times worse. If mainstream New Zealand was shocked by the violence unleashed on the final day of the anti-vaxxer occupation of Parliament grounds, can it even imagine the response to an attempt by right-wing Pakeha politicians to stuff the genie of co-governance back in his bottle?

It took a whole room-full of seconded police officers working the phones and the computers for several days to gather from all around New Zealand the 500 constables needed to drive the occupiers from Parliament grounds.  Imagine, then, the effort required to quell demonstrations and occupations several orders of magnitude larger than the bedraggled remnants of ‘Camp Freedom’. In the end, I suspect that’s what Lord Cooke, Sir Geoffrey Palmer, and Moana Jackson realised.

‘Complementary democracy’

The colonial state, or what’s left of it, lacks both the will and the means to restore itself. The extreme element may yearn for another General Cameron to put the natives in their place, but they have not thought through the grim logic of their position. They do not understand that it would lead inexorably to a civil war – the outcome of which would be far from certain. It’s hard to imagine a more Kiwi predicament: to implement a co-governance revolution, one manageable (and eminently justifiable) change at a time or to reject the whole concept of ‘complementary democracy’ (as the public service boffins are now calling co-governance) and spend the next decade turning ourselves into Northern Ireland. That is to say, engaging in fratricidal strife for years and years, only to bring it all to an end with a power-sharing arrangement. If we’re wise, we’ll skip the fratricidal strife bit and go straight to power-sharing. There are worse things in this world than co-governance. Just ask the Ukrainians. ■

Chris Trotter is a political commentator and writer of more than 30 years’ experience. He is the author of the Bowalley Road blog ■