Constant repetition of assertions that Maori have a Treaty of Waitangi right to dedicated seats on the new Auckland Council doesn’t make them correct. It is clear that neither Tuku Morgan nor Len Brown, nor most of the other advocates of separate representation, has read the Treaty, sometimes called our founding document. It is a simple treaty of three clauses. It was written in 1840 when nothing approaching today’s concepts of democracy existed anywhere in the world. There was no parliament, nor any councils in New Zealand. Consequently there was nothing that could be deemed an Article Two “taonga” to be preserved on behalf of Maori. What there was in the Treaty, however, was an Article Three guarantee to Maori that the Crown would give Maori “the same rights and duties of citizenship as the people of England”. In other words, when it came to politics, Maori rights would be the same as everyone else’s.
Because the Government of Edward Stafford brought in the temporary provision of four Maori seats in 1867 that gradually became a permanent feature of our electoral landscape, some have argued that they form a precedent for separate Maori representation on councils. In fact, no council in the greater Auckland area that will be the subject of the new Auckland City has had separate Maori seats, although two elections took place in the 1980s for the old Auckland Regional Authority using parliamentary boundaries. Two Maori were elected. Since the 1970s Maori have proved that they can win general seats on councils in the Auckland region. Harry Dansey, Dr Pat Hohepa, Ruth Norman, Denise Henare and Betty Wark all sat on either the Auckland City, the Regional or North Shore City councils. There have been others. Most councils have had Maori advisory councils for the last twenty years. They have worked well. Provision now exists in law for councils around the country to opt for separate Maori seats. Only one, so far as I know, has decided to do so. After all, before voting, most councillors realised that Article Three of the Treaty guarantees Maori the same rights as everyone else. Both Manukau and Waitakere cities have debated establishing separate Maori seats. Both rejected them.
A few people have been heard to argue that the Court of Appeal in 1987 implicitly backed the concept of separatism when it talked of “partnership” between the Crown and Maori. But the Court had nothing to say about representation because its brief related to other matters. In any event, what can do more to foster the concept of “partnership” than recognition that all citizens enjoy the same rights? That is a concept enshrined in our Bill of Rights and within our judicial system. Neither recognises any form of separatism.
The Royal Commission into Auckland did discuss the idea of separate seats for Maori who constitute approximately 11% of Auckland’s population. Page 487 of the report appears to argue that the Commission felt some not very clearly defined obligation under the Treaty to recommend separate Maori seats. If the Commission had then argued for representation on the Auckland Council using the existing parliamentary electorates, it would have been anomalous not to include two Maori seats. But the Royal Commission in March 2009 did not recommend parliamentary electorates. Its suggestion of three Maori seats on its Auckland Council introduced a new concept that in my view went beyond its terms of reference. It recommended state enforced separatism at the local level where the choice in current law is one for councils to discuss and deliberate upon. When John Key ruled out going to the lengths advocated by the Royal Commission, he was doing no more than exercising the right of central government ultimately to deal with the legislation required to implement its report. Since no obligation for separatism exists under the Treaty, or in today’s law, he was simply exercising the discretion that is rightly his government’s.
Everyone would benefit from reading the Treaty of Waitangi. Many assertions about it keep being made in ignorance of its actual provisions.