How should Māori views be represented in
The immediate constitutional question
behind this is whether New Zealand should retain a Māori electoral roll and Māori seats. See my recent post
on the Māori seats.
The Māori electorates have been criticized
for being tokenistic and ineffective in representing Maori views, on the one
hand, and racially separatist and a form of special treatment for a minority,
on the other. Their existence is evidently controversial, but neither of the
main two political parties has been determined to terminate them, each for its
own well-known political reasons. The Māori seats have, however, made it
possible for the Māori Party to make a difference in parliament and government,
and this has been a beneficial political development.
The existence of the Māori seats has become,
however, inconsistent with the principle of an equal and non-discriminatory
right to vote. There was good reason to introduce them in 1867, as Māori were
effectively disfranchised by the electoral system of that era. The problem identified
at that time no longer exists, and it can only be a matter of time before the Māori seats are abolished.
The question is how much time, and this is
a matter that should not be forced through. Māori seats should remain in place
until such time as Maori are prepared to relinquish them. They should not be
entrenched in a written constitution, as they should be regarded as a
‘temporary measure.’ Article 3 of the Treaty grants to Māori equal rights as
‘British Subjects’ – which we must now read to mean ‘New Zealand citizens’ –
and they are bound by the law, including the electoral law, in the same manner
as other citizens. The Māori seats appear to be an exception to this Article.
They may be consistent with Article 2, at a stretch, however. But the letter of
the Treaty does not compel us to retain the Māori seats, nor to entrench them
in a written constitution.
A ‘bicultural’ upper House is not
recommended either. The idea that Māori are the ‘Treaty partners’ and therefore
should be represented in a special 50/50 bicultural forum, over and above the House
of Representatives, is not justifiable. There is nothing in the Treaty to
directly mandate such an institution, and the idea diverges too far from the
principles of proportionality in the legislature and equality among voters.
The representation of Māori views in
parliament is not only a question of having or not having special Māori seats
or forums, however. The answer to this question is largely political and goes
beyond the constitutional scope of the present ‘conversation.’ There are 20 Māori MPs presently, seven of whom represent Māori seats. It is thus up to all
political parties to represent Maori views, according to their own processes
and policies, and to be accountable to voters for that.
How could Māori electoral participation be
Māori electoral participation, notably in
the Māori electorates, is particularly low. Voter turn-outs have been dropping
in recent decades across the board, and this is more pronounced among lower
socio-economic groups and the young. The low participation rates by Māori are
unfortunately consistent with that. No-one to my knowledge has come up with an
effective way to raise voter turn-outs, however, and the problem is a
deep-seated one that must be addressed politically. Again, I see this question
as being a political question, rather than a constitutional one. There is no
strictly constitutional solution to this at present, as the Electoral
Commission does all it can to encourage people to register and to vote.
How should Māori views and perspectives be
represented in local government?
There is presently a statutory provision
for Māori wards in local government, but so far only one local authority has
adopted them. The Auckland Council was denied them, controversially, in its
Effective governance at the local level
needs to take into account the authority and cultural values of mana whenua,
and so some means of representation of Māori views should be routine. There is
no compelling case to force all local authorities to have Māori wards, however,
either in statute or in a written constitution. Locally appropriate democratic
and consultation processes should be found to include and represent Māori views, or to ensure the election of mana whenua representatives to Councils.
As for the role of a written constitution,
then, it may be necessary to go beyond the ‘bottom-line’ principle of
non-discrimination in regard to the local representation of indigenous
communities. This should not go so far as to entrench Māori local wards. But a
constitution could at least permit such solutions, in as much as they are
considered appropriate for the time being by a local authority, and in the
interests of rectifying disadvantage or under-representation. Such wording
would need to be consistent with the UN Convention on the Elimination of Racial
Discrimination, which allows for ‘special measures’ for groups that have
suffered past discrimination.
Thus, if a local body chose to adopt Māori wards, then the measure would at least not be unconstitutional.
In addition, Treaty settlement negotiations will still create possibilities for local iwi/Crown co-governance arrangements, for contracts with government for by-iwi-for-iwi service delivery, etc. But these are matters for negotiations and do not require a mandate in a written constitution.