David MacClement's submission to CAC
14 April 2005
I recognise that the Constitutional Arrangements Committee (CAC) is calling for submissions on NZ's existing constitutional arrangements, the first stage of the government's constitutional arrangements review.
But I believe we must start as we mean to go on. Not rushing something which began 165 years ago, and which a big minority of NZers (most Maori and a great many Pakeha) are currently dissatisfied with.
I agree with the 1 Apr 2005 article in the NZ Herald by MP Nandor Tanczos (Greens Justice Spokesperson): 'Our most important goal could be ditching monolithic view of power'. He says:
"The assertion that Parliament is sovereign because the majoritarian mandate is the highest form of legitimacy serves the interests of the Pakeha majority but does not tell the full story. The legitimacy of the parliamentary system has its origin not in the democratic mandate but in a genuine social contract. It was the Treaty of Waitangi, an agreement between two sovereign peoples, that provided the basis for Pakeha settlement and government in this country. I suspect that if a more collaborative view of power was held by members of the executive towards the judiciary, Maori and the public, a far better outcome [is possible]."
More specifically, Professor Winiata in his Rua Rautau Lecture 2005, Otaki, 30 January 2005 (with which I agree), quotes Pat Snedden providing insight into the potential of the kawanatanga and rangatiratanga relationship:
"In recent times it has been usual to juxtapose Maori sovereignty with Crown sovereignty, both in direct competition for precedence. It does not have to be so. There is evidence that the original intent of the parties to the Treaty allowed for joint protection under the law but separate sovereignty over assets and taonga."
Professor Winiata himself says:
"In the middle years of the 1980s, the Anglican Church in Aotearoa New Zealand and Polynesia ... concluded that: partnership and two cultures development were embodied in the Tiriti/Treaty, ... [T]he Commission formed to consider the Church's role in giving expression to the Treaty, identified kawanatanga and rangatiratanga as two distinct sources of authority for the ordering of future relationships. ... A form of tino rangatiratanga, acceptable to Te Pihopatanga o Aotearoa, is provided for. The partners to the Tiriti/Treaty agreed that there would be space for each to travel their own cultural route in their lives within the Church where there is no impediment or disadvantage created for the other; and, that when there are implications for the other, the partners would not move without the approval of both. There were worries that in the decision-making of the legislative body of the Church, namely, Te Hinota Whanui/The General Synod, bottlenecks would result. However, since the constitutional revisions have taken effect, there has not been one division..."
It's clear that people of goodwill can come to an accommodation, provided they are given enough time to do that.
My conclusion is that NZ's existing constitutional arrangements are insufficiently based on Aotearoa/New-Zealand's founding legal document, and that there is a clear way to improve the present arrangement, namely a good-will-based accommodation between kawanatanga and rangatiratanga ("joint protection under the law but separate sovereignty over assets and taonga").