Few things have been as depressing as the recent media coverage of the Treaty Principles Bill.
The desire to create an adversarial spectacle to support attention-grabbing headlines means media outlets apparently seek to identify just two sides to a debate on a very narrow issue.
This aggressive bipolarisation process has been particularly unfortunate with regard to the coverage of the current debate on the Treaty Principles Bill, because there are three, not just two, specific and significant positions within the governing elite of this country with regard to it.
In order to understand what the eventual outcomes of this process might be for the nation, it is essential to understand all three of these positions and their relationship to one another, along with the motivations of those who hold them. I will therefore attempt to summarise these positions, all three of which are predicated by this statement:
"The Principles of the Treaty of Waitangi Bill (1975) established the concept of ‘Treaty Principles’ for the Treaty of Waitangi, but did not define them. Instead, the expectation was that defined Treaty Principles would emerge subsequently via a common law process through rulings of the Waitangi Tribunal and the Courts."
Position 1: The status quo
Important Treaty Principles such as "partnership" and "Māori sovereignty" have now been firmly established via legal ruling/precedent. These common-law principles are increasingly applied via constitutional-level legislation that includes clauses requiring that Treaty Principles be adhered to. No change is necessary, or even possible, because these Treaty Principles, even though they are not formally defined, have superseded the sovereignty of Parliament.
This is the position apparently held by Māori activists, large sections of the KC/legal community, Labour, Te Pati Māori and the Greens.
Position 2: A full reset
After 50 years there are still no consistently defined Treaty Principles. However, requirements to conform to these undefined common-law Treaty Principles are increasingly being incorporated within constitutional-level legislation. This creates the potential for unplanned, unpredictable, highly undesirable and possibly irreversible constitutional developments. The common-law process in this area therefore needs to be fully reset immediately by defining the Treaty Principles in publicly ratified legislation.
This is the position apparently held by Act New Zealand (8% of parliamentary representatives), and by the general public who might eventually ratify it by a ratio of about two-to-one if recent polls are to be believed.
This is the bipolar debate as it presented by the media, but of course the lists of adherents to the two sides of it reveal a glaring omission — National and New Zealand First have not said they are "for" either of these two positions. Between them these two apparently uncommitted components of the governing elite represent 80% of the ruling parliamentary group, the prime minister and the majority of the Cabinet.
However, by word this group has said they are against the reset approach of Position 2, as both parties have categorically stated they will not support this Bill in its second reading. By deed they have indicated that they are also against the status quo of Position 1.
The deed in question is their proposal to systematically remove all references to principles of the Treaty of Waitangi in existing legislation, dating back to 1986, that do not directly refer to specific Treaty settlement agreements. The words and deeds of National and New Zealand First thus suggest the specific nature of their critical and discrete third position in the debate.
Position 3: Containment
After 50 years there are still no clearly defined Treaty Principles. However, requirements to conform to these undefined common-law Treaty Principles are increasingly being incorporated within constitutional-level legislation. This creates the potential for unplanned, unpredictable, highly undesirable and possibly irreversible constitutional developments.
This ongoing common-law process relating to the Treaty therefore needs to be fully contained at a sub-constitutional level by eliminating all references to general Treaty Principles in current and future legislation.
With this third "containment" position revealed, everything the government is doing at the moment immediately makes sense.
Under normal political circumstances, Position 3 would be considered to be extreme and would attract a considerable amount of political and media flack — but not when Act has Position 2 on the table.
As long as Messrs Luxon and Peters stay well away from Position 2 (and they clearly are), what was a politically extreme proposal on their part thus becomes moderate — a classic positioning ploy. They are also able to stay outside of the structure of the bipolar debate that has been created by the media.
The government can therefore look forward to at least six months’ peace and quiet within which to action Position 3 and fully eviscerate current Treaty-related legislation, while the doomed Treaty Principles Bill absorbs the flak and media attention in select committee. The sense of triumph/relief among the opponents of the Bill will likely supply the government with several more months to continue their containment work after they have eventually voted down the Treaty Principles Bill.
It is likely even Mr Seymour would be satisfied with that outcome. After all, the legislation that is required to action Position 3 will have required his support.
The media, by contrast, will likely be appalled once they eventually cotton on — especially as it is their mistargeted saturation reportage that will have largely provided the government with the opportunity.
— Dr Robert Hamlin is a senior lecturer in the Department of Marketing, University of Otago. He is commenting here in a personal capacity.
