Could the Treaty of Waitangi become the next casualty of populism?

Andrea Vance is a senior journalist and columnist for the Sunday Star-Times.

Could the Treaty of Waitangi become the next casualty of populism?

ACT is campaigning for a referendum on co-governance, the shared model of decision-making that sees Crown and iwi partners having equal seats around the table.

The party has not defined the question it wishes the voting public to answer. But it has established a position: it wants to rewrite the principles of the Treaty into law during the next term of Parliament.

In doing so, David Seymour is riding the intense wave of national populism that has surged across other Western democracies – and given it a distinctly Kiwi flavour.

Broadly, it reduces society to the people vs the elites. In ACT’s narrative, a left-wing and iwi ‘elite’ are imposing an undemocratic system of power into institutions that cannot be challenged.

It shares a key component of right-wing populism: to denigrate others based on race, nationality, religion, sexual orientations or gender identity.

Seymour also adopted another hallmark: a demand that majorities prevail over the constitutional constraints and parliamentary complexities that have evolved in modern democracies, and over minority rights.

That undercuts one of the basics of liberal democracy: the protection of the rights of minorities, in favour of majoritarianism.

Of course, democracy also enshrines free speech, and Seymour is entitled to question the extension of co-governance from the management of rivers, lakes and forests to public services and institutions (such as Māori wards in local councils, the creation of the Māori Health Authority, or Three Waters Reform). Indeed, it falls within his role as a member of the Opposition.

There is also a strong argument for deciding on a clear definition of co-governance.

Many on both sides of the argument are questioning how the Treaty had been interpreted by the courts over the last 50 years, and would prefer Parliament to legislate. Giving the courts free rein has sidelined debate and hasn’t helped public understanding.

However, Seymour should answer for why – and how – he is pursuing this issue.

Certainly, the ions are charging. Already, we have seen ugly scenes as a ‘stop co-governance’ roadshow travelled the country.

There is no question the issue is divisive, and the debate does present a risk to social cohesion. But while it might be poisoning New Zealand politics, it is not dominating it.

The most recent Ipsos issues monitor shows that inflation/cost of living, crime, housing, healthcare, and climate change are the chief concerns of voters. Only 4% of those polled were worried about race relations.

Perhaps recognising this, National have ruled out supporting the proposed referendum as part of any post-election coalition arrangement.

ACT’s policy is a gross oversimplification of complex issues. The party’s understanding and Euro-centric interpretation of the Treaty has already been called into question by academics.

It interprets tino rangatiratanga as a right to authority over property. But legal scholars place far greater meaning on the concept, akin to ‘self-determination’ in English.

If Seymour was serious about constitutional reform he would be proposing something more than a four-paragraph piece of legislation – subject to repeal by a simple parliamentary majority – with something more authoritative, like a written constitution.

All this policy does is serves up the next generation of courts another two decades of work.

Referendums are also a dreadful way to decide constitutional matters, subjecting them to the vicissitudes of political controversy, stripping out nuance and encouraging dehumanising language and distorted realities. They are a demagogue’s dream: Brexit is a case in point.

Should ACT genuinely wish to have a conversation about Te Tiriti’s role in Aotearoa, there are better, less blunt and binary ways, to do it. One mechanism could be a Royal Commission, or a Parliamentary inquiry.

But that’s not the ambition. With an insidious, but deniable, subtext, ACT is asking another question: one that allows its supporters voice their unhappiness about something else entirely.