Why the Treaty should not be included in a written constitution

Treaty claims should be completed but the Treaty should not be included in New Zealand’s constitution, argues  Wah McLean

I do not agree that the Treaty of Waitangi should be incorporated in a written constitution for New Zealand.

Rightly or wrongly, successive Governments have awarded reparations to Māori to address wrongs allegedly perpetrated not by the people presently living here but by people who lived here many years ago. There has been considerable debate as to the merit of many of these reparations which have been and are being paid for by people who have done no harm to Māori. It has been argued that in making these reparations there is never any acknowledgement of the great benefits conferred upon the Māori people by the advent of western civilisation. Whatever the merits of these arguments what is done has been done and cannot be undone.

I have no doubt that if the Treaty is enshrined in a constitution Treaty claims will never end and there will be continuing conflict as to the justice of settlements.

The proposed Constitution for Aotearoa New Zealand incorporates a Bill of Rights which will quite rightly  guarantee all kinds of rights  including freedom from discrimination on the grounds of race. The inclusion of the Treaty will almost certainly result in additional rights being conferred on people who claim to be Māori. Māori claim special treatment on the grounds that they are tangata whenua – i.e. that they are the indigenous people of New Zealand – but this is clearly debateable as many people argue that there are no indigenous people in this land as we all emigrated here. If Māori claim that they are tangata whenua because they came here first, then what about the Moriori people who were here when Māori arrived and who were allegedly enslaved and virtually eliminated by Māori?

My point is that there will always be arguments about these things but if we are all to go forward together on the basis of equal rights for all as guaranteed by the proposed Bill of Rights then the Treaty should not be part of the law of our land. I therefore submit that all existing  Treaty claims should be finalised and if and when a constitution is adopted it should not incorporate the Treaty.

Finally, the fact that the Treaty may not be incorporated in the constitution does not mean that it should be consigned to the dust bin. It is an important part of our history and should be celebrated as such.

About Wah McLean: Wah McLean is a retired solicitor living at Waitahanui near Taupo.

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