Indigenising Aotearoa-New Zealand (part 2)

Continued from part 1

Setting aside that argument, article 2 of the Treaty can be read as a partial codification of pre-existing Maori rights as indigenous people because it reserves full chiefly rights over land, forests, fisheries, villages and taonga. This is not a necessary interpretation but it is one which many Maori have implicitly applied.

The crucial word is "taonga" in the Maori version. The relevant phrase in the English version is "other properties", which most non-Maori would read as land, buildings or chattels. Taonga, however, loosely translates as "treasures" and Maori take taonga to refer to all of a tribe's or family group's (whanau) "estate, material and non-material -- heirlooms and wahi tapu [sacred sites], ancestral lore and whakapapa" [genealogy and special connections with natural features, such as mountains, rivers and rocks] . Traditional Maori culture is animist: humans are inseparable from nature and the spirit world. What non-Maori tradition regards as myth, traditional Maori regard as knowledge (some even say "science") and Maori internalise that myth. Thus the non-material ("invisible") taonga may include taniwha -- spirits -- as an integral part of traditional Maori life.

Gradually, legislation is according protection to such features. Maori has been an official language for a quarter of a century and there is special assistance, under a state Maori Language Commission (Te Taura Whiri i te Reo Maori), to foster the language. Consultation is required with Maori, in development consents under the Resource Management Act and there is special protection in the Copyright Act for Maori flora, fauna and motifs. A bioethics council set up to advise the Environmental Risk Management Authority on genetically modified organisms is bound to consider Maori values and spiritual matters. Under the new Land Transport Management Act local tribes must be consulted on roading plans and actual road projects: a delay in a road in the Waikato because a tribe had not been consulted on a taniwha located in the path of the road caused an uproar in late 2002.

At one level this is unremarkable: building a road through a cemetery causes an outcry among non-Maori (for example the Shell gully motorway in Wellington in the late 1970s); the same should logically apply to an urupa, a Maori burial site. But urupa often do not have monuments or even visible boundary markers as do European ones and may be identifiable only in the tribal (oral) memory. And in a post-christian world such spirit-world creatures as taniwha have long been banished by science. The reaction of most non-Maori ranges from scorn to irritation. Even sympathetic non-Maori mostly respond with polite incomprehension. Very few non-Maori are genuinely bicultural.

The National and ACT parties have by and large endorsed that popular scorn and frustration, though in office in the 1990s National did accord some recognition to ancestral places in legislation. Labour (which holds all seven parliamentary constituency seats set aside for Maori), the Progressives and the Greens, who see some parallels with modern green spiritual inclinations, are more sympathetic or at least less unsympathetic.

But indigenous rights arguments by some Maori do not stop at the boundaries of article 2 and taonga. The Treaty is now used as a window into a general doctrine of indigenous rights, based on "tikanga Maori" -- which translates roughly as "what is right and proper in the (traditional) Maori world".

It is on this general doctrine of indigenous rights (incorporating aboriginal title), not on the Treaty, that the foreshore/seabed case rested.

There was no doctrine of terra nullius in respect of New Zealand. The Colonial Office insisted cession of sovereignty must be formally obtained from Maori which it recognised as occupying and thus in a sense owning the land. Settlers were required to buy Maori land, not simply occupy it. Nevertheless, settlers (and at one point the British Colonial Office) considered much of that land "waste" because it was not being continuously and wholly occupied -- Maori tribes moved from site to site both for hunting and gathering food and for cultivating crops. To Maori all of the land, both in the hunting-gathering and cultivation sites and between them, was the tribe's land. And that "land" included the foreshore and seabed where, for example, they would gather shellfish, an important source of protein in pre-European times. That was the basis of the foreshore and seabed case taken to and endorsed by the Maori Land Court in 1998. The Court of Appeal ruled last year that the Maori Land Court did have jurisdiction, which raised the possibility the Land Court may grant exclusive title on the basis of aboriginal title (thought it also this may be difficult to establish.) What does this amount to if given legal imprimatur? That Maori customary practice might prevail over what had become general New Zealand custom, a belief that the foreshore and seabed were in the control of the Crown and all had unfettered access to it.

This was and is political dynamite. It is by far the government's most difficult issue for this year. Non-Maori (and a lot of Maori) were incensed that Maori might block off access to the "beaches" (though in fact the claim was not to the beaches). The government immediately issued an assurance that public access would be guaranteed and has since proposed to legislate that the foreshore and seabed be in the "public domain" except where already subject to freehold title (as most port land is, for example), with a commission to determine whether a tribe or whanau has a case for a new "customary title". The National party demands immediate legislation to declare the foreshore and seabed Crown land. The ACT party sees it as an issue of property rights and says the court process should have proceeded unhindered (a Privy Council appeal by the Marlborough District Council, against which the original action was brought, has been withdrawn and the government did not lodge an appeal). The Greens have (so far) sided with those Maori who have described the government proposal as the "last great colonial land grab". New Zealand First, headed by a Maori and with six Maori in its 13-member contingent in Parliament, has tried to ride both horses. The government's main support party, United Future, supports its approach but this is not enough for a majority since two Labour Maori constituency MPs have declared their opposition.

In an interesting twist, Maori tribes have taken the issue to the Waitangi Tribunal for a ruling on whether the government's proposal is consistent with the Treaty -- even though this is not strictly a Treaty case. It is a measure of the Treaty's lengthening reach.

It also underlines that the Treaty process did not happen in a vacuum, any more than did the economic reforms of the 1980s. The push for indigenous rights is an international phenomenon. Though the Treaty does have specific historical and local drivers and can be understood only by understanding those drivers, it is also part of a worldwide development.

The Treaty, "partnership" and power-sharing

If you put together the constitutional, self-administration and indigenous rights dimensions of the Treaty, you can more readily understand the principle of "partnership" imputed to the Treaty in the 1987 Appeal Court judgment referred to above. The "partners" are those of the original Treaty, Maori tribes (individually) and the Crown. The basis is Maori status as tangata whenua, with special rights under article 2, which also was argued by the Appeal Court to impute a duty of care to protect those rights.

There are conceptual and practical difficulties with the partnership notion and these have added to the tensions in the Treaty debate. At the core of those difficulties is who constitutes the two partners. Large numbers of Maori have no or a tenuous connection with their tribe or have multiple tribal connections; all Maori have some non-Maori (usually Anglo-Celtic) ancestry and so also are, in a sense, on the other side of the argument. The "Crown" in practice boils down to the government, which represents all citizens, including all Maori. An interesting twist is that Te Puni Kokiri (the Ministry of Maori Development), which in part acts as an advocate for Maori within the bureaucracy, and the Minister of Maori Affairs are unequivocally part of the "Crown".

ACT and the National party now that it is in opposition have been critical of the partnership notion.

Nevertheless, governments have dutifully tried to act out the partnership role. This is in part driven by a sense of moral responsibility and respect for the Appeal Court formula. But it also has a practical side. If New Zealand is to prosper economically and be a stable society, the large, growing and seemingly intractable "gap" between average Maori educational, health and economic performance and average non-Maori performance, must be at least narrowed and preferably eliminated. To be blunt, take out Maori and New Zealand would on average be a significantly richer country (in material terms, that is). Partnering with Maori agencies, governments of several stripes have hoped since the mid-1990s, will increase the effectiveness of social assistance and health and education services and lift Maori performance. Likewise the connection of alienated Maori youth who have fallen foul of the law to their traditional culture has been held to help their rehabilitation. Government social agencies have specialist Maori units.

Partnership goes far beyond that, however. If Maori are to be true partners, they must have a share in power. As stated above, biculturalism is about power-sharing.

Hence there are now widespread requirements in legislation for officials to consult with Maori or pay special attention to Maori: in the Resource Management Act, the Local Government Act, the Health and Disability Act, the Land Transport Management Act and many others. While Maori cannot usually exercise a veto, they can have considerable influence now, especially over development consents under the Resource Management Act (which can result in payments to tribes for the "consultation"); even applications for government money for research grants require a statement as to how Maori will be advanced by the research and some money is set aside for research into Maori knowledge, which in a western sense is not strictly research at all. And in many departments and local councils, even where the legislation does not explicitly require consultation, Maori are now consulted or have a unit within a policymaking, decision-making or delivery institution.

Where will this stop? True partnership -- a partnership of equals -- would logically, as indicated above, require parallel systems, with Maori accountable to Maori and not to the government through the Public Finance Act and the regulatory agencies.

Taken to its logical conclusion, partnership at the national level would lead to parallel Parliaments. This has been long advocated by Whata Winiata, a former professor of accountancy, and was implemented (with indifferent results) by the Anglican Church, in which Winiata has been influential. Logically, a Parliament in which Maori are a small minority cannot convincingly represent an allegedly equal partner (as also a referendum on an issue about which Maori are sensitive, such as the abolition of the Privy Council, could not). So Winiata argues for a Maori Parliament (legislating for Maori), a general Parliament (legislating for everyone else) and a "Treaty House" where conflicting initiatives are resolved.

That brings us back to the debate on sovereignty and self-government. Parallel Parliaments are not going to happen because in hard politics, which deals in numbers, the "partnership", if there is one, is not between equals. No party in Parliament argues for parallel Parliaments and, in fact, not very many Maori of influence do either -- at least for now.

The Treaty and citizenship

Not least among the roadblocks stalling any scheme such as Winiata's is the difficulty, mentioned above, of identifying who is in which box. Considerable numbers of Maori -- that is, people with some Maori ancestry -- do not identify as Maori. Of those who do identify as Maori in the census, not many more than half enrol to vote in the seven constituency parliamentary seats reserved for Maori. Most of the rest enrol on the general roll.

This suggests that large number of Maori have taken to heart article 3 of the Treaty. That article conferred on all Maori in New Zealand when the Treaty was signed "the rights and privileges of British subjects" -- in modern parlance, New Zealand citizens.

Therein lies one of the fiercest debates over the Treaty.

Does article 3 just mean equality before the law? If it does, then "group" rights do not apply and there should not be "laws based on race", according to National, ACT and New Zealand First. That would challenge a great deal of the activity under article 2, under the partnership principle and in recognition of indigenous rights.

But social democrats such as Labour and the Progressives and also the Greens argue that equality of citizenship requires at least some government intervention to reduce inequalities of opportunity: in education, health care and housing. This supports the very activity those preferring a strict definition condemn. But it is subject to a great deal of dispute about exactly how much support should be given and on what terms: for example should special assistance extend to "capacity building" assistance to tribes to enable them better to self-govern or manage devolved social services delivery agencies? A great deal of money seems to have gone on events that do little to improve capacity.

And who gets the assistance? Those who are enrolled with tribes? Or also those who enrol with non-tribal agencies? Or anyone who identifies as Maori? The "partnership" is with tribes, if the Treaty is strictly interpreted, not with individuals or Maori in general. One of the commonest questions from non-Maori about the Treaty is: what is a Maori?

The Treaty as breach of contract

The problem with the Treaty for most puzzled, frustrated or angry non-Maori is that they have thought of the Treaty process as righting past breaches of the Treaty (for example, by government confiscations, refusals to return land taken or gifted for public works or projects when the original use is discontinued and underhand alienations of land). While there is considerable dispute as to whether this generation of non-Maori should atone for the actions of previous generations, there is a strong consensus at the political level that there should be compensation for breaches of the Treaty and this has won acceptance from the electorate, though many are grudging about it.

For that reason some parties, notably National and ACT, have proposed a time limit on lodging of claims with, and their disposal by, the Waitangi Tribunal and negotiation of settlements between the government and tribes.

Moreover, the wide extension of Treaty claims into such taonga as the radio spectrum, oil and gas and flora and fauna and the use of the Treaty to obtain partnership status and many privileges and measures of assistance and to claim a wide range of other indigenous rights and even "sovereignty" have brought the historical claims into disrepute with many non-Maori by association. So, too, have claims or assertions by Maori that lack authority, for example, in March 2003, an attempt by one Maori to have women banned from a hospital building, which was slapped down by other Maori with greater authority. The media don't help in their treatment of the Treaty, giving prominence to items like that one which are likely to stir fear, anger or derision among non-Maori: another example (among many in 2003) was that a research project had been in effect subject to a veto by Maori though that was not so.

There is also the "grievance industry": a clutch of lawyers, Maori and non-Maori, and those on commissions or advisory bodies who make comfortable and in some cases affluent livings out of advising claimants or leading a claims process. Progress on claims is excruciatingly slow: of more than 700 claims lodged with the Waitangi Tribunal only a handful have been settled, though some have been big ones. There is a fear among non-Maori that this will never end and that tribes will come back for second bites even when there have been "full and final" settlements.

And, of course, every hour spent by Maori leaders, lawyers and intelligentsia on claims is an hour not spent bending their minds and their skills to lifting Maori economic and social performance. Settlements of historical Treaty breaches do not necessarily go to that end: they are at least as much about tribal mana (dignity, standing) as about money -- and the money and assets go to the tribes, of which large numbers of Maori most in need of social and economic assistance are not active members (though recent settlements have included, at the government's insistence, mechanisms that ensure widespread distribution of the benefits).

The Treaty as morality, principle and politics

The Treaty is referred to in legislation in a wide variety of ways, which is confusing and inconsistent. One of the commonest references is to the "principles" of the Treaty: agencies and administrators are required to observe or not be inconsistent with the "principles". However, apart from an attempted listing of the principles by the cabinet in 1989, the principles have never been defined. Like a great deal else to do with the Treaty, definition has been left to the courts.

This is problematic in that the courts are then in effect forced into policymaking on a matter of high, indeed paramount, public policy. For this they are inadequately equipped, given that they are dealing not with the totality of issues the Treaty encompasses but with particular cases.

Arguably, developments in Treaty practice would ideally be done by way of political debate and decision rather than by way of jurisprudence.

In the final analysis Treaty policy is a matter of balancing morality and practicality. The Treaty was not a legal requirement until it began to be written into legislation which was backed by court decisions. It was a moral decision to accord value and meaning to the Treaty. And it is practicality that constrains the Treaty's reach.

The government's current approach was summed up in April 2003 by the Deputy Prime Minister, Michael Cullen, in speeches to Labour party regional conferences and an interview with me. In essence, he stated:

* In interpreting the Treaty, the Maori-language version takes precedence. That is well established in other jurisdictions, including the United States and Canada.

* While Maori could not be said to have intended to cede sovereignty (the word "mana" would have been used in the Treaty if so), the Crown assumed sovereignty and has exercised it, "unbroken and largely unchallenged, ever since". It is impossible to unscramble that egg now.

* All article 3 did was to accord Maori the same protections British citizens had. It does not modify the rights protected under article 2, "which is what the Crown signed up to in 1840 and which still is our law".

* Article 2 protects more than a "list of possessions". It protects taonga. "That makes the Treaty a living document where new applications or implications may arise as circumstances change."

* Taonga include wahi tapu (sacred places) and the Maori language (though not the English language, which the Treaty does not protect) but do not include the airwaves.

* There will never be "black-letter-law certainty". What is in and what is out will be decided case-by-case by discussion. "Not all traditional practices are taonga," Cullen said in the interview. But it does mean sometimes inserting into legislation a reference to taking into account the Treaty's principles (though the courts would probably rule that anyway).

Rather belatedly, the government is trying to run a general education programme for the public on Treaty, in part through the Human Rights Commission.

The Treaty and the future

The Treaty pervades a great deal of public life in New Zealand. That would have been unthinkable to all but a few Maori 25 years ago and the current extent of the Treaty's influence would have surprised policymakers even 10 years ago. The Treaty is the pre-eminent political issue in 2004 and (in the absence of any natural, security or economic cataclysm) will be for some time to come.

That is because in the crunch the Treaty process -- biculturalism -- is about power-sharing. No one yet has a clear sense of how much power-sharing will result. Hence there is great uncertainty, some hope, much fear and considerable tension. So far this tension has been manageable and managed. But the Court of Appeal's decision upholding the possibility of aboriginal title over the foreshore and seabed came as a profound shock to what most New Zealanders thought was settled custom and law. That decision has posed possibly the severest test yet for management of the Treaty process.

At one end of a very long spectrum of opinion and action some Maori are trying to elevate the Treaty into a binding document affirming and protecting indigenous rights and according Maori parallel, or at least special, status in governance of the country (verging, among those who hold the most extreme views, on "sovereignty"). These Maori celebrate an animist worldview which is profoundly at odds with the post-christian secularity of majority New Zealand.

At the other end of that very long spectrum of opinion are a minority of non-Maori who consider the Treaty an historical document with no relevance to a modern state and modern life and who see Maori as equal individuals before the law, entitled to no more from the state than any other individuals and subject to the democratic principle of one-person-one-vote, which is counter to some of the presumptions under "partnership".

Between these extremes there are multitudinous opinions, not least among Maori. There are divisions between those Maori close to traditional marae and those living in the cities (often as third-generation or fourth-generation "immigrants"); between those who maintain the traditions and those who are little or no different from non-Maori in their attitudes and daily life; and, among leaders, activists and the intelligentsia, between purists and pragmatists, protesters and deal-makers. Moreover, tribes have different stances and preoccupations, depending in part on their leaders, in part on historical experience -- including longstanding feuds -- and in part on their locations, whether coastal or inland. There is no "pan-Maori" view nor any strong pan-Maori political organisation. But it is fair to say most active Maori, including traditional leaders and the intelligentsia, strongly affirm Maori influence in governance and strong protection for Maori land rights, traditional practice and self-administration of Maori matters, including delivery of social services. And it is fair to say that the great majority of non-Maori accept the moral imperative of redressing historical breaches of the Treaty (though are frustrated at the slow progress) and are prepared to acquiesce in a limited degree of Maori influence in governance, extension of the Treaty settlement process into taonga and respect for Maori spiritual and cultural belief.

Unsurprisingly, the political parties in Parliament reflect much of this span of public opinion. The Treaty is highly divisive at the parliamentary and electoral levels.

The ACT party (eight MPs) proclaims itself a party of "classical liberalism" in the Smith/Hume Enlightenment mould. It also pursues a populist agenda on crime and race which is hard to square with its claim to a principled approach in its promotion of classical liberalism. Thus ACT emphasises article 3, which it says does no more than assign Maori equality before the law and does exactly that and limits Maori influence to one-person-one-vote. ACT rejects what it calls "race-based" policies that advantage or single out Maori as a "group" and wants the Maori parliamentary seats abolished. It does accept that there should be redress for breaches of the Treaty over land but wants a time limit. It places much emphasis on property rights, which led it, alone among parties in Parliament, to argue that Maori should have their day in court on the foreshore and seabed and not have their property rights abrogated (even with the compensation the government is proposing). ACT now has no Maori MPs (though Donna Awatere-Huata, who in the early 1980s was a firebrand Maori activist and then became a well-paid consultant on Maori affairs to government departments and business, was an ACT MP from 1996 until she failed to renew her membership in 2003).

National (27 MPs) campaigns under the slogan "one standard of citizenship", again appealing to article 3 and has recently adopted a policy of abolishing the Maori parliamentary seats. It rejects ACT's pure property rights argument and says there should have been immediate legislation after the Court of Appeal's decision to vest the foreshore and seabed in Crown ownership. It supports redress of breaches of the Treaty over land -- it carried through three large ones, on the fisheries, with Ngai Tahu in the south and Tainui in the north -- but now wants a time limit. It supports delivery of social services by tribal and other Maori agencies -- and indeed pioneered them in health in the 1990s -- but wants much tighter monitoring and an end to "capacity-building" assistance. It is highly critical of the proliferation of consultation provisions in legislation and requirements to observe the "principles" of the Treaty and pay respect to Maori spiritual and other "invisible" taonga. National has one Maori MP. National under its former leader, Bill English, also had begun to argue that the Treaty created rights for non-Maori as well as Maori and these should be debated alongside Maori claims.

New Zealand First (13 MPs) is led by a Maori, Winston Peters, who was briefly Minister of Maori Affairs in a National government in 1990-91 before forming his own party in 1993. He was Deputy Prime Minister for 20 months in a coalition government with National after 1996. Including Peters, New Zealand First has six Maori MPs out of 13. New Zealand First is a populist party and its strongest appeal is its opposition to immigration, particularly from Asia. It wants the Maori constituency seats abolished and refuses to stand candidates in the seats. Its position is generally close to National's but with particular twists, the most important of which are a focus on lower-class Maori who do not benefit from Treaty settlements, criticism of the "grievance industry" and argument that the focus of Maori policy should be education. However, Peters also contrives to appeal to the traditional Maori leadership and has implied criticism of the government's abrogation of aboriginal title for the foreshore and seabed while also insisting the foreshore and seabed must be open to all.

United Future (eight MPs) gives the government support on confidence and supply, thus assuring it of a majority (though not for all legislation). United Future's leader, Peter Dunne, was a Labour MP and cabinet minister and, after forming his own party in 1995, was for a time in a National cabinet in 1996. United Future supports the government position on the foreshore and seabed. It supports redress for historical Treaty breaches but is critical of too great an extension of the Treaty process into taonga. It is uncomfortable with the extension of consultation requirements in legislation and the references to Treaty "principles" in legislation. United Future has no Maori MP.

Continued in Judges 3 .