The political context of the Treaty of Waitangi and human rights

Speech by Colin James at Human Rights Commission symposium, Wanganui, 20 July 2004

“People say he’s got rights. But I don’t think he should have rights.” That quote from Radio New Zealand’s Morning Report today about paedophile Lloyd McIntosh provides a neat starting point for what I want to say in this symposium on human rights.

In my view rights do not pre-exist. They are not eternal and undeniable. In many states, for example, there is no right to life. People are tortured and murdered by those in authority, with no means of appeal or redress.

So in my view rights are made. They are claims that are made into rights either by those strong enough to defend and enforce them or by society as a whole sanctioning them and, through the state, defending and enforcing them. In a democratic society that means getting the majority to agree to recognise and enforce the claim. Sometimes that comes from within society and sometimes it comes by way of legislating into effect in New Zealand the terms of an international treaty or an aspect of international law.

So indigenous rights are not eternal and undeniable. Indigenous rights are denied in many states, including in this one until about 20 years ago. Indigenous rights are a relatively recent construct and still gaining credence and the force of law. The United Nations has been unable to agree on a declaration of indigenous rights. It remains in draft form.

So it should not be surprising that most New Zealanders are mystified by rights which Maori have claimed and which have been increasingly recognised by the state in legislation or administrative practice. Most New Zealanders see their rights as individual rights, which they share equally in common with all other New Zealanders, as individuals. Most New Zealanders are puzzled or angry that there appears to be another set of rights which only those with Maori whakapapa can claim and exercise.

That helps explain the strong appeal of Don Brash’s message in his Orewa speech in January of “equality before the law — no special treatment for Maori”.

The majority does accept the need for redress of breaches of the Treaty of Waitangi (though many among that majority are grudging about it). However, the majority does not see redress of those breaches as a matter of indigenous rights but as remedying a breach of contract. Such redress accords with the egalitarian value of “a fair go” that has run deep through this society since the early days of colonisation. There was a deal; it should have been honoured.

[This, of course, begs the question of how the Treaty recovered its force in our public life. Maori demands for recognition of the Treaty paralleled demands by other indigenous peoples for recognition of special rights, with or without treaties. But that is not how the majority of New Zealanders would see it.]

Most New Zealanders also agree with another right guaranteed by the state: freedom of spiritual belief and private cultural practice. In that, however, Maori are no different from Pacific islanders, Catholics or Hindus. Most New Zealanders, judging by polls, anecdotal evidence and such public “debate” as there has been, do not agree that there are special cultural and spiritual rights deriving from tangata whenua status, the simple fact of having got here first, the “first nation”.

Nevertheless, Maori have succeeded in getting the political elite, both Labour and National, to accord a large degree of state recognition, through legislation and administrative practice, to Maori claims to special treatment as indigenous people. In this sense the Treaty can be seen as a codification of some indigenous rights and the response by the courts, successive governments and successive Parliaments can be seen as recognition of those rights.

But the state has recognised only those rights that can be tied back to the Treaty. And, as we have seen this year, there is no general agreement among the population that even all of those rights should be recognised and enforced — let alone the whole panoply of indigenous rights. Moreover, there may well be majority support for a future government de-recognising some of the rights already acknowledged. Brash’s Orewa speech was specifically a rejection of special indigenous rights. And the speech was widely acclaimed.

In short, there is no sure democratic majority for indigenous rights — even those rights codified by the Treaty. The majority has yet to be persuaded.

Let me now put this in a different frame, within the story of two “indigenisations” over the past 30 years.

One is what I have just talked about: the reassertion by Maori of their culture and history and their reclaiming of indigenous status as the first inhabitants. As I have indicated, this has been recognised by the state in recompense for breaches of the Treaty of Waitangi, in designating Maori as an official language and promoting the learning of Maori and in writing into legislation the need to consult Maori, protect Maori customary rights and respect Maori cultural and spiritual values and treasures.

But there has been another “indigenisation”. That is the independence of the ethnic British from Britain. This was formally obtained in 1947 but in New Zealanders’ thought and sentiment Britain did not cease to be “Home” until the generation born after the second world war came to adulthood. From the 1970s this generation generated a flood of writing, art, dance, film and music which was unselfconsciously “New Zealand”.

This was the generation which dominated the fourth Labour government cabinet in the 1980s and radically changed the whole policy environment: economic, constitutional , social and towards Maori.

That is the second “indigenisation”: the descendants of the colonisers making themselves at home — that is, indigenous.

These two “indigenisations” are in conflict. Non-Maori have the weight of a democratic majority, as the defeat of Maori indigenous common law claims to exclusive ownership of the foreshore and seabed makes clear. But culturally the Maori “indigenisation” is more strongly rooted than the newly indigenised British-originated one. The ethnic British non-Maori have made the break with the mother culture but have not yet felt strong enough in their newly indigenised culture to reconnect with and draw strength from the British and European tradition in the way Maori have been able to reconnect with and draw strength from traditional Maori culture.

We are unlikely soon to resolve the tension between the strongly rooted “reindigenised” Maori culture and the still fragile “indigenised” British-derived culture. That may take another generation or two.

That is a bother because resolving that tension is the most important issue facing the country. It strikes at the heart of what people feel this nation stands for, what its culture is. Without consensus on that, economic success is much more difficult to achieve because cultural tensions cause social tensions and investors are wary of economies in which there are social tensions.

Look at this through another lens. The assertion of Maori culture challenges the majority culture. That is at the heart of the foreshore/seabed argument: a 150-year-old national value of free access to the beach and foreshore was challenged by the 650-year-old Maori claim to ownership of the foreshore.

When someone’s values are forcefully challenged that person becomes angry or insecure. The Appeal Court decision and Maori demands for that decision to stand generated fear and anger. This “cultural insecurity”, the feeling that core values are under attack, is another ingredient in the remarkable reaction to Brash’s Orewa speech. The New Zealand of a generation ago was securely British-derived in its culture and habits. Now some of those core values have been challenged by Maori reclaiming indigenous status. There is now a contest of values. That is discomforting.

Moreover, this has come about very fast, within 30 years and in particular within 20 years. The change in status of Maori and their expanded role in public life, including decision-making, has amounted to a revolution. Recall the place of Maori in 1984: minimal recognition of the Treaty of Waitangi and certainly not as the founding document of the nation (as Winston Peters persuaded the National party to say in 1989); a few kohanga reo but otherwise no Maori educational or health delivery agencies; no special attention to Maori spiritual values and customary rights; no specific consultation written into legislation– in fact, not much more than strife at Waitangi Day and over land claims presumed the work of “radicals” (though, largely out sight, “conservative” Maori leaders quietly supported the general claim to honour the Treaty).

And this revolution was the work of the political elite. It left the suburbs behind. It has not been a revolution from below, of the people. Consequently there is widespread puzzlement, fear or anger among those without Maori whakapapa. Brash gave voice to that puzzlement, fear and anger.

The result has been an astonishing rise in the polls for National and Labour forced into circling the wagons and to make a show of rooting out “race-based funding” or face defeat in next year’s election. In response to that the Maori party has emerged and it appears to have wider support than any previous pan-Maori political movement since the rise of Ratana in the 1930s. The hikoi illustrates that. Most of the votes it gets will come from Labour or non-vote.

Only the Greens have backed the tribal stance, though ACT has also said tribes should be able to pursue their claims. United Future and New Zealand First– which has lost its primacy as representing the culturally insecure because it fishes in the immigration pond and Brash has taken over the bigger Treaty pond — are more or less aligned with Labour.

That sets the democratic majority firmly against the indigenous rights minority. The issue now is what the majority will do.

The Brash Orewa position, if logically applied, would produce a profound change across a wide range of administrative policies and legislation: abolition of all race-based funding, recognition of but assignment of no power to Maori customary practices, removal of all references to Maori cultural and spiritual values from legislation and replacement with references to all cultures, removal of special consultation of Maori from all legislation, strict time limits on filing of Treaty of Waitangi claims and abolition of the Maori seats (which it will not contest at the next election — neither will New Zealand First) and nationalisation of the foreshore and seabed. That would greatly heighten the cultural and political tensions, though it might also tighten the focus on Maori educational and economic development which I will talk about later.

But will this happen? The National caucus has already agreed to allow race-based funding of Maori Television. It has agreed to Maori delivery agencies for education, health and social services. It seems now to acknowledge some Maori customary rights. It is so far silent on what it would do the Maori Land Court, the Bill of Rights, the Human Rights Commission and the Race Relations Conciliator in respect of any specific Maori rights. It might well be that once in office National would (a) have more pressing things to do than give top priority to a huge Treaty legislative programme, (b) discover more reasons for preserving some “race-based funding”, (c) find it impossible to enforce strict time limits on Treaty claims and settlements and (d) recoil from the likely vehement protest by Maori, some of it potentially violent, against the wholesale abrogation of rights and privileges built up over the past 20 years. A National-led government may also have to moderate some of its declared policies in order to accommodate different opinions from coalition partners or supporters. Longer-term, National will need more Maori votes than it now gets if it is to set up long-running governments.

So the immediate future is unclear.

But look ahead, say, a generation.

Demographics will be a powerful driver of policy a generation from now, whichever major party leads the governments. There will be more Maori and Pacific islanders: this country will look and feel more Pacific in the broadest sense of that word (encompassing the South Pacific and Maori spheres, which are closely related) and will increasingly express itself in a Pacific manner, through Pacific cultural reference points.

This will over time be so not just for those with Maori and Pacific whakapapa but also for those without Maori or Pacific whakapapa. That is because a second stage of the revolution has just begun: the cross-fertilisation of the British-inherited culture by Maori culture. One small example is the routine singing of the Maori version of the national anthem before the English version, even at National party conferences; contrast the outrage just five years ago at the World Cup rugby. Another example is the vibrancy of kapa haka in the schools, in which large numbers of non-Maori take part. In the past there was token adoption of some Maori words and practices: the All Blacks’ haka, for example. Over the next generation or two the Maori influence is likely to spread and deepen. It will become more embedded as those now in our schools become the over-40s. Already much of our music is driven by Maori and Pacific musicians and performers. Some of the most vibrant graphic art is by Maori. Increasingly, Maori and Pacific people are making themselves felt in fiction and theatre.

Over time this will translate into our politics and our social organisation, not least because of the growing numbers of Maori and Pacific people who identify firmly as Pacific people. That will influence the economy and the shape of society as well as the culture — and in turn affect our politics, though it is not possible yet to say in exactly what manner.

This will cause resentment among many of those who have no Maori or Pacific whakapapa, especially those who are older — and all the more because those non-Maori who are nearing old age now are of the generation which “indigenised” here in the 1970s and 1980s. Non-Maori will resent being assigned to a second-comer, inferior status implied by the special recognition of Maori as tangata whenua, the truly indigenous. They will especially resent paying taxes which are spent in ways by Maori organisations that lack adequate accountability.

It will be a test of the glue in this society whether it can reconcile tangata whenua status and the determination of non-Maori to be indigenous. To put it bluntly, if we are not all indigenous, there will be no nation here.

In any case, if Maori are to be successful educationally, economically and socially, the focus of Maori leaders will need to shift from the victim mentality of the past 100 years. A victim mentality locks the “victims” into failure. The foundation work in reasserting the culture and gaining full recognition for Maori culture has broadly been achieved by the generations now in their 40s and older. Increasingly (though still in small numbers), I find leading and energetic Maori in their thirties taking for granted the gains of the 1980s and 1990s and turning to educational and economic development. In the government John Tamihere is giving voice to this welcome change of focus.

The point for Maori, as it would have been if there had not been colonisation– and as it was for the Maori who signed the Treaty — is to be international citizens, full members of, participants in and beneficiaries of the international economy and society, as article 3 declared them full members of, participants in and beneficiaries of the British Empire, which was in 1840 the dominant social, political and economic force in the world. Maori want to be prosperous and well-fed and comfortable no less than everyone else does.

That means branching out from traditional Maori belief systems to develop a modern belief system. And it means great changes in the governance structures, a democratisation of Maori society. After the comfort of the recovered tradition, that will be a huge wrench — and it can only be done by Maori acting for Maori on their own volition. Only when Maori are as much international citizens as non-Maori will the accommodation be possible that binds this society together.

We are, as Tamihere says, doing the “hard yards” in this generation. The next generation will tell us whether we are going to be successful and we have here something resembling a nation.