Neil Sands
Former attorney-general Christopher Finlayson KC is predicting the select committee review of the controversial Treaty Principles Bill will be a “ghastly exercise” that will turbo-charge the already heated race rhetoric around David Seymour’s proposed legislation.
And Finlayson – who was the Minister for Treaty of Waitangi Negotiations from 2008 to 2017 with dozens of treaty settlements under his belt – has a message for both sides of the debate: “Everyone should chill, adopt less inflammatory language… The best thing to do is just tone it down, now.”
He has been an outspoken critic of the bill, saying “it asks the wrong question and gets the wrong answers”.
Finlayson rejects Seymour’s argument that the bill is needed because Parliament has been silent on the treaty principles for the past 50 years, allowing the courts, the Waitangi Tribunal and public service to fill the void and create uncertainty.
“There’s been no uncertainty,” he says. “The principles in general are quite benign. They’ve been worked out over the years, a series of cases and so on.
“I think it’s inventing a problem for political reasons. There’s no real problem with any of this. I regard much of what’s going on at the moment as an own goal. We didn’t need to go there, things were going pretty well.
“The problem is not the principles of the Treaty of Waitangi. It could have been that the previous government went too far in some policy initiatives and that’s riled people, but the reaction to that is excessive. It’s very unfortunate and is going to do a lot of harm.”
‘A lot of hate’
However, Finlayson does agree with Seymour on one issue – his assessment that New Zealand has not been so divided on race since the 1981 Springbok tour. And he says it could get much worse, warning that the country is “on a precipice”.
“If we’re not careful, race relations in New Zealand could go to an ugly place,” he told LawNews.
A potential catalyst is the six-months of scrutiny of the bill by Parliament’s Justice Select Committee, after passing its first reading last month amid chaotic scenes in the House. A hikoi which culminated in more than 40,000 protesters marching through Wellington to the Beehive showed the depth of feeling around the issue.
Finlayson said the committee’s review, which will include submissions and public hearings, needed to be tightly run by its leaders.
“We’ll have to see how it goes. You’ll have some pretty unpleasant, nasty creatures coming out of the woodwork and making submissions to them,” he said. “You’ll have those who say the bill goes too far, and those who rage against it.
“Personally, I think that the best thing to do is adopt a cold, logical approach and destroy the underlying assumptions of the bill through power of argument. But you’ll get a lot of fulmination, there’ll be a lot of hate. New Zealand will be much worse off for this ghastly exercise.”
The Justice Select Committee, chaired by National MP for Rangitata James Meager, recognises the issue in its call for public submission, which close on January 7.
“The committee is conscious that the bill is controversial and intends to facilitate a measured debate,” it says, adding that submissions containing offensive language will not be accepted.
The ‘sour right’
Finlayson says Seymour’s bill is a populist measure that appeals to people who are afraid of change.
“I’ve always described them as the ‘sour right’, people who don’t like any change. Any change that does happen is negative, makes them feel uncertain,” he said.
“So you’ve got to work with those people to try to let them know that all will be well and you can’t stop certain tides of history. But you certainly don’t appeal to their prejudices. That’s what we’ve seen it all around the world in recent years.
“If you apply a populist approach to matters, that only leads to ashes, leads to chaos, leads to failure and we don’t need to go there in New Zealand.”
The National Party agreed to support Seymour’s bill to first reading and select committee as part if its coalition agreement with ACT, but says it will vote it down at second reading.
Labour’s Helen Clark agreed to a similar deal in its coalition with NZ First after the 2005 election, allowing the Principles of the Treaty of Waitangi Deletion Bill to reach Parliament, and ultimately fail, in 2006.
That bill did not generate the same racial angst as Seymour’s. Finlayson says the 2006 proposal did not seek to recast the treaty and was not introduced in the context of numerous policies seen as hostile to Māori.
“It’s taking place against backdrop of what one could say are perceived negative views toward Māori,” he said. “It also doesn’t [just] seek to delete principles of the treaty from legislation, but recast what the treaty means. I think those things are problematic.”
‘Catastrophists’
The Waitangi Tribunal has accused the government of targeting Māori, citing policies such as abolishing the Māori health service | Te Aka Whai Ora, ditching Māori local government wards, repealing s 7AA of the Oranga Tamiriki Act and curbing the use of te reo in the public service.
The tribunal says this has left New Zealand “bordering on a constitutional crisis”, but Finlayson said such rhetoric did not promote measured discourse.
“They’re overstating it. They tend to be catastrophists,” he said. “I don’t regard that kind of comment with any degree of seriousness.”
He was equally critical of supporters of the bill who used overblown language to make their case, saying it was a characteristic of modern political debate.
“It’s true, isn’t it, that in the last decade or so political rhetoric has been cheaper?” he said.
“Maybe it’s the Trump effect? But it’s not just Trump, it’s everyone on both sides of the political divide. Language has become more florid and more abusive and has been cheaper.”
Finlayson said the Treaty Principles Bill and debate surrounding it had dented New Zealand’s reputation as a world leader in indigenous affairs.
“I’ve had a lot of people calling me from all around the globe, saying ‘what the hell’s going on? What’s happening?’
“The whole situation’s been damaging. We can’t deny that.”
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