Friday, December 6, 2013

Advisory panel report hardly furthers 'constitutional conversation'

Yesterday the final report of the Constitutional Advisory Panel was released by the responsible Ministers.  It is difficult to see what the report adds to a process of constitution-building in Aotearoa. The report mostly identifies that there are a range of opinions on various technical issues and that more public education about constitutional and civic matters is necessary.  This is hardly news. I should add that I do not intend this as any criticism of the Constitutional Advisory Panel itself. The terms of reference that were set for the Panel virtually ensured that this would be the case.

The Panel deals with two areas that specifically relate to Māori:
  • The Crown-Māori relationship (essentially, the place of the Treaty of Waitangi); and
  • Māori electoral representation.

In both areas, the Panel’s report identifies that there are effectively three options: Strengthen or enhance the existing mechanisms, maintain the status-quo, or remove the existing mechanisms. 

In the case of the Treaty the Panel’s report describes two models that would strengthen, to various degrees, the role of the Treaty in our constitution (‘A Treaty-based constitution’ and ‘Take active steps to accommodate Treaty rights and obligations’), one model that effectively represents the status quo (‘Maintain development of existing arrangements to accommodate Treaty rights and obligations’), and one model that removes the Treaty altogether (‘A constitution without the Treaty’):
A Treaty-based constitutionOne option discussed in the Conversation was to discuss placing the Treaty and Treaty relationships at the centre of our constitutional arrangements, rather than attempting to graft them onto existing Westminster arrangements. Models could be drawn from previous attempts by Māori to establish autonomous structures and from a range of international examples including Canada, Bolivia, Norway and the United Kingdom. Take active steps to accommodate Treaty rights and obligationsA range of different options to more proactively recognise the Treaty within the existingconstitutional arrangements were raised during the Conversation, including:
  • confirming the Treaty as a tool for interpretation, rather than having legal or constitutional force. For example, the Treaty might be added to or referred to in a preamble to the Constitution Act 1986
  • making the Treaty one of the standards for good process – the courts could test process rather than outcomes against the Treaty
  • making consistency with the Treaty a required consideration in all legislation and government action, for example by making the Treaty supreme law, perhaps along with the rights in the Bill of Rights Act 1990.
  • The requirements could be given force by: 
    • establishing a dedicated Treaty court, or increasing the jurisdiction of the Waitangi Tribunal or the general courts, with powers to assess whether legislation is consistent with Treaty principles 
    • creating an upper ‘Treaty’ house in Parliament with 50% Māori membership 
    • entrenching Treaty rights to reduce their vulnerability to change.
 Maintain development of existing arrangements to accommodateTreaty rights and obligationsThis option would preserve the current institutions and mechanisms of government. Most Treaty matters would be settled by negotiation between the Government and iwi as the need arises, with the ability to refer specified issues to the courts for resolution if necessary. 
This option may be supported by people who see the principles and text of the Treaty as important elements of the constitution but do not consider the Treaty discourse is fully developed enough to include it in a written constitution. In the conversations, some Māori supported this view on the basis that the Treaty is sacrosanct and should be left alone. It would sit outside the legal system in much the same way as does the American Declaration of Independence in relation to the American Constitution, yet its principles inform the development of the law and the nation’s constitutional values. A constitution without the TreatyThe Panel acknowledges that many New Zealanders remain sceptical that the Treaty can be a constructive element of our constitution and so may be reluctant to participate in a conversation about its future. Based on the Conversation, however, the Panel believes it is not viable to wind back the clock. The Treaty is already a fundamental element of our constitutional arrangements. It would be unfair, unjust and unrealistic to go back on the commitments made to iwi and hapū by successive governments. Nor do the arguments of equality put forward by some proponents of this view sufficiently acknowledge the diversity of this country’s people. The Treaty is not inherently divisive – its purpose was to establish a relationship between two peoples in one nation. Any divisions arise from a failure to meet those obligations, not from meeting them. The question is not just whether the Treaty is part of the constitution, but how it is best reflected and what we want to achieve by reflecting it. The Crown cannot turn back on the commitments made in the Treaty and subsequently without the risk of social and political tensions. Any decisions made in such a crisis situation are unlikely to be enduring.
This leads the Panel to make the following recommendations:
The Panel recommends the Government:·      continues to affirm the importance of the Treaty as a foundational document
·      ensures a Treaty education strategy is developed that includes the current role and status of the Treaty and the Treaty settlement process so people can inform themselves about the rights and obligations under the Treaty
·      supports the continued development of the role and status of the Treaty under the current arrangements as has occurred over the past decades
·      sets up a process to develop a range of options for the future role of Treaty, including options within existing constitutional arrangements and
arrangements in which the Treaty is the foundation·      invites and supports the people of Aotearoa New Zealand to continue the
conversation about the place of the Treaty in our constitution.
I have no problem with the Panel addressing these models at a relatively high-level and I am pleased to see that the Panel confirmed that the Treaty does have a place within our constitutional arrangements.  However, I fail to see how the report’s observations or the bland recommendations that have been proposed take us any further forward in a constitutional conversation than we were a year or so ago - or even ten years ago, for that matter.