The indigenisation of Aotearoa-New Zealand: the politics of the Treaty of Waitangi

Paper for the Australian judges conference by Colin James, 27 January 2004

By "the Treaty" is meant, essentially, Maori rights. There is more to it than that, to which I will return, but the core article is article 2, which explicitly protects some indigenous rights. [By "Maori" this paper means anyone with any Maori ancestry who identifies as Maori, which is the common usage in New Zealand.]

And New Zealand has to get it right. Maori are around 15 per cent of the population and increasing. They underperform on all social and economic indicators. The coherence of this society and its economic wellbeing require Maori to feel wholly part of this society and be full participants in an internationally competitive economy.

This marks New Zealand out from Australia, Canada, the United States, Japan -- indeed from most modern, democratic states which have indigenous populations. In those countries attention to the needs and rights of the indigenous people is an optional extra, perhaps a moral duty or an ethical claim. Here it is an inescapable necessity.

The alternative, assimilation into a world of European values and practice, is no longer practicable. It is what most non-Maori and even many Maori would like and what seemed until 30 years ago to be destined. But too many Maori over too long a time have reclaimed and regenerated Maori culture and heritage and too many governments over too long a time have responded to claims for a distinctive place in the culture, society and power structure for Maori culture, heritage and ways of doing things for this country to revert to simple assimilation.

In any case, indigenous rights would be on the nation's agenda, even if there was no treaty. The Treaty is a vehicle for expression of the claim to those rights and responses to those claims. But it is not the sum total of Maori claims or rights.

The nation was starkly confronted with this broader indigenous rights dimension in the decision by the Court of Appeal on 19 June 2003 on a case in which seven Marlborough tribes and a tribal trust had sought in the Maori Land Court title to foreshore and seabed "land" on the basis of common law aboriginal title that had not been extinguished. The Court of Appeal found the areas were "land", that aboriginal title could be argued in the Maori Land Court and ownership registered, including as freehold title (though the claim would succeed only if continuous use was established).

This has caused much political and public excitement, angst, uproar and hope and will, a leading commentator on indigenous rights has argued, force the development of a local jurisprudence of aboriginal title. New Zealand custom for a century and a-half has been that the foreshore and seabed are public property and the Appeal Court decision seemed to most non-Maori to threaten access to the "beaches" (which are actually the dry part above the foreshore). Rattled by that reaction, the government responded, in great haste, with a proposal to put the foreshore and seabed in "public domain" but allow Maori to argue to a commission the case for "customary use" and a form of "customary title". Maori tribes at meetings called to "consult" on the proposals and subsequently have (in their public statements) near unanimously rejected the proposal because, they say, it negates ancient property rights. Though ministers says Maori leaders have been more conciliatory in private and so think they will be able to bring a creditable number of Maori leaders around, that is not a foregone conclusion and in the meantime the political opposition is claiming too much is being conceded by way of customary title and other Maori rights in respect of any areas to which they obtain such title. Around 10 per cent of the coastline is potentially subject to claims, Land and Information New Zealand has calculated.

This matter illustrates the extent to which "the Treaty" and the flow-on from its resurrection have already profoundly reshaped New Zealand and will continue to do. And that process has some powerful underpinnings that do not rest on legal or political bases.

The indigenisation of New Zealand and reindigenisation of Aotearoa

New Zealand went through what amounts to an independence revolution in the 1980s. From the late 1970s there was an explosion of new writing, plays, films, dance and music which, by contrast with what had gone before, was unselfconsciously local (and uneven but refreshing). This was not at odds with the colonial period's sport-outdoors-equality ethos but qualified it and introduced new and richer dimensions of expression. Revisionist interpretations of the country's history appeared in the 1980s. And there was a profound policy upheaval after 1984: in economic policy, from a highly protected economy to one of the most open and deregulated in the world; in social policy; in policy toward Maori; in foreign and defence policy; and even in the constitution.

In part the deep policy change after 1984 represented the coming to power of the generation that, in the 1960s, precipitated the values revolution which swept our sorts of countries. It was also in step with, and owed much to, the ascendancy of neoclassical economic theory and market-driven economic and social policy reform in those countries. But in New Zealand policy change went faster and deeper than in those other countries. Why? For one thing, the economy was seriously distorted and there was a financial crisis, which required swift surgery and strong medicines. Then, once there was momentum for reform, the tightly centralised, village-like political system enabled a small group at the heads of the cabinet and the bureaucracy to continue to drive through radical change.

But those two factors do not alone account for the swiftness and depth of change; there was always the opportunity to slow or stop; and there was much political pressure from many quarters and other political incentives to do so -- one government was destroyed and another mortally wounded in the process. Moreover, the policy change in the 1980s was faster and deeper than in either of the two previous radical reform periods, the 1890s and the 1930s. Something else had to be operating to explain the depth and speed of policy change.

I contend that critical factor was that New Zealand was becoming "independent", emerging from its colonial interlude. While formal independence was taken in 1947, it was not until the 1980s that New Zealanders acquired and exhibited a fully independent mentality. So the 1980s upheaval was New Zealand's independence revolution, evidenced most in the newly vibrant unselfconscious cultural expression.

It was not a revolution in the sense of a violent overthrow of the political system and/or of the established social order, as classical definitions of revolution require. But it did amount to a "cultural" revolution in the sense that elements of the value system changed considerably. Certainly, what was going on felt to many at the time like revolution. It involved social, cultural and economic upheaval and insecurity for large numbers of people and, though much continued largely unchanged, much also changed sharply.

In essence, this cultural revolution indigenised majority New Zealand, that part of the population principally or only ethnic-European (mainly English, Scottish, Irish or Welsh). After the 1980s New Zealand is no longer British. New Zealanders still visit or go to live in large numbers in Britain, with which there is a venerated, or at least instinctive, ancestral Anglo-Celtic connection. But by the 1980s it was no longer Home, as it had been to previous generations. Home is New Zealand, with a distinct landscape, a distinct approach to daily life, distinct ways of thinking and distinct ways of expressing itself -- a distinct popular culture and, from the 1980s, a distinct high culture. Ethnic-European New Zealanders are indigenous here now unless they are first-generation immigrants or over 60.

But this indigenisation has been complicated by the reassertion by Maori of first-inhabitant status -- that is, by the reindigenisation of Aotearoa. Maori have demanded and to a great extent achieved recognition as tangata whenua, the indigenous people of the land, with special claims to landscapes, special status for their traditional culture and influence over public policy and administrative decisions. This reindigenisation of Aotearoa has both complemented and challenged the indigenisation of New Zealand and is in some ways stronger because it asserts a continuity of culture tied to the land whereas the indigenisation of ethnic-European New Zealand is a discontinuity, a separation, and may remain fragile until ethnic-European New Zealanders are able unselfconsciously and confidently to reconnect with, reclaim and celebrate the European, and particularly, Anglo-Celtic culture which is the root of their newly indigenised culture. Over the past 20 years many liberal ethnic-Europeans have been afflicted by "cultural cringe" in the face of a reclaimed and reasserted Maori culture that has seemed to them a stronger-based culture than their own.

The reindigenisation of Aotearoa began almost imperceptibly among the few Maori university students and academics in the mid-1960s, at the very point when a homogenised New Zealand, a better Britain, seemed secure. From the 1970s Maori began, by way of occupations and marches, forcefully to advance claims to land alienated in breach of Treaty conditions. They began to revive interest, initially amongst themselves, in the language and in art, craft and cultural expression. They later asserted a special cultural and governance status (of Maori affairs and in influence over general political decisions), sought official and public respect for sacred and ancestral sites and laid claim to ownership and/or control of taonga (which loosely translates as "treasures"), varying from oil and gas to the radio spectrum to copyright in native flora and fauna.

As articulated by Maori intelligentsia and leaders, this amounted to asserting a parallel social and political order with the European, in 1987 characterised by the Court of Appeal as a "partnership" between Maori and the Crown. New Zealand is bicultural before it is multicultural and in this country now biculturalism is about power-sharing, not just tolerance of and support for the minority culture. It is not a subset of multiculturalism, with which New Zealand is also wrestling and which biculturalism complicates.

Though Maori reindigenisation of Aotearoa obviously parallels and reinforces the independence from Britain at the core of ethnic-Europeans' indigenisation, the reaffirmation of the special relationship with the Crown (the British Crown) inherent in the Treaty adds an intriguing and conflicting dimension.

Moreover, it has generated tension bordering on, but never quite spilling over into, racial standoff. The Treaty has been a one-way street for 20 years and among non-Maori there is a great deal of disquiet and rejection, verging on anger.

But the walk down the Treaty street has also been accompanied by the beginnings of an almost imperceptible -- but also powerful and irreversible -- meshing of Maori culture with the newly indigenised ethnic European culture. In 1999 the singing of the Maori version of the national anthem at the rugby world cup triggered uproar among non-Maori. Now the standard way to sing the anthem is the Maori version first, followed by the English version, even at conferences of the conservative National party. The word hui is widely used for a meeting or conference. Even quite conservative people frequently begin a speech with a few ritual phrases of Maori. Few formal events now do not start with a powhiri, a formal Maori welcome. These are small steps, not much more than gestures, and so too much should not be read into them. But they were unthinkable 20 years ago. Almost without noticing it and with little fuss, non-Maori are acquiring some Maori habits and language. No indigenised ethnic-European in this country can not be part-Maori in culture even if not in ancestry. The two indigenisations may often appear in conflict but they are also entwined.

This is not going to produce the offwhite unified race envisaged by past policymakers and commentators. It is a weave of two different threads, more like an intricate houndstooth cloth. But it is important to keep in mind that no Maori can be purely Maori. All Maori, including some of the most assertive traditionalists, are also part-European or mostly European in ancestry. They all live in a predominantly European-derived society and share the aspirations and contradictions of that society. Even the most ardently traditional Maori are bicultural -- and in modern hands Maori arts and crafts are drawing on a wide variety of non-traditional influences to create a vibrant new expression. Most Maori want what non-Maori want from the economy. And large numbers of Maori choose to be monoculturally European despite their ancestry, indistinguishable from ethnic-Europeans except by colour and often not even that.

But there are Maori who want radically to change the society, culture, politics and economy of the country and take direct action in support of their aims And there are many non-Maori who viscerally reject the Treaty and the cross-cultural process, though so far resort to direct action has been extremely rare. If things go badly wrong, there are the makings of sporadic violence or worse in the Treaty process. The pleasant surprise is that 25 years into the process, those seeds have not germinated. So far the process has been contained within the parameters of reasoned, though often tense, political debate and argument.

That is the context of the politics of the Treaty.

The multifaceted Treaty

A difficulty in coming to grips with the Treaty is that it has many different facets and they often overlap. This is confusing even for those who are familiar with the Treaty. It greatly complicates general political debate, both among politicians and among the general public, who are often unfamiliar with the Treaty. Often people talk past each other even though they think they are addressing the same point. This heightens differences and conflict.

€ There is a constitutional dimension (see the preamble), from which claims for special recognition as tangata whenua, the indigenous people, have been derived along with other, largely erroneous, claims.

€ The Treaty both does and does not deal "sovereignty" (article 1) and also evokes for some a lingering Maori "sovereignty", though actually this is better read as "self-government", "self-administration" or devolved administration (article 2), which takes many forms, both in theory and practice.

€ There is an indigenous rights dimension (article 2) but the Treaty does not encompass the totality of indigenous rights claims, as the current furore over the foreshore and seabed demonstrates. In this respect New Zealand's issue with Maori is closely similar to the issue other countries, including Australia, are facing with their indigenous peoples who are demanding recognition.

€ Those three elements, taken together, have led to a presumption of "partnership", which both imposes on the government a duty of care and is thought to justify special consultation with Maori on a widening range of public policy matters and has been given legislative imprimatur.

€ There is a citizenship dimension, which gives rise to some of the fiercest arguments. Are Maori just equal before the law or do they deserve (are they entitled to) special assistance as a group to enable full participation in the society and economy? If so, who constitutes that group?

€ There is a simple breach of contract dimension (article 2), which is what the Waitangi Tribunal was set up in 1975 to deal with but, coupled with the above elements, has spread across into areas that seem off-limits to most non-Maori.

€ There is a moral dimension. The Treaty does not have legal weight, except to the extent that it is explicitly incorporated in legislation. That it is increasingly being given such legislative recognition stems in part from recognition by authorities of a moral or ethical duty.

Add up all these factors and the inescapable conclusion is that the Treaty is about power-sharing. It is not a subset of multiculturalism. That is the rub in the Treaty and is why it furnishes a rich lode of political argument. It is a huge boon to journalists like myself because it has woven a blanket of uncertainty which now cloaks the future of this society and its economy.

The Treaty and the constitution.

By the late 1980s all significant political parties had accepted that the Treaty was a, or the, "founding document" of New Zealand. The preamble states that the Treaty is to lead to " a settled form of civil government" established by the British Crown.

This does not mean any more than that the Treaty paved the way for British government and the 1852 Constitution Act. Nor does it say that the Treaty is part of the constitution or is the foundation of the constitution. However, some people have asserted one or both of those. Some have asserted that it is the constitution, which is a somewhat romantic construction.

A source of the confusion lies in article 1, which purported in the English version to transfer sovereignty from the tribes to imperial Britain and in the Maori version only to confer on Britain "kawanatanga" (literally "governorship"). This falls far short of "mana", which would come closer to what Maori understood as sovereignty, though those tribes exposed to Christian missionaries may have had some inkling of the powers and extent of government and understood kawanatanga to mean at least some kind of protectorate.

Nevertheless, the Treaty is now closely bound up with the constitution. Any attempt to discuss the constitution, even a "minimalist" change from Governor-General to appointed President, immediately leads into debate on the place of the Treaty, as became starkly apparent at a constitutional conference organised by the Victoria University Institute of Policy Studies in April 2000.

This is partly because the Treaty was between tribes and the Queen and the tribes therefore claim, and feel, a special relationship with the Crown and/or monarch that transcends their dealings with the elected government of the day. This clouded the debate on the abolition of appeals to the Privy Council in 2003, though many Maori did support that change.

Thus, if New Zealand is to become a republic it will need at least to consider the place of the Treaty. Should it be recognised explicitly in a new constitutional document? And, if so, should it be by way of a reference in the preamble, incorporation of the Treaty or the Treaty's preamble in the constitution's preamble or as a separate article, or incorporation of the Treaty as part of a Bill of Rights embedded in the constitution? A government proposal to incorporate it into the 1990 Bill of Rights Act was rejected by Maori on the grounds that it would diminish the mana (standing) of the Treaty to incorporate it in simple legislation because that would make it subordinate to Parliament instead of in transcending Parliament as the founding document of the nation. The same could be argued about incorporation of the Treaty , or even reference to it, in a new constitution.

There is some irony in this in that even now the Treaty has legal force only to the extent that it is explicitly required in legislation.

A small but growing school of Maori thought accepts that New Zealand will become a republic at some time (though that may be some decades away) and that there will need to be explicit entrenchment of the Treaty in some form. However, there is also now a small but growing school of thought that argues the Canadian precedent: the Crown may be a useful transcendent feature of the constitution for a nation in which there are secessionist or self-government tendencies in a part of its population.

The governing Labour party, its coalition partner, the Progressive party, and the Greens all favour a move to a republic. The government has since 1999 taken some steps in that direction: abolition of knighthoods, abolition of Queen's counsel as a title for barristers and abolition of appeals to the Privy Council. It is now reviewing official oaths, with a view to removing the reference to allegiance to the Queen.

However, the government has no intention to move to a republic in the near future or even raise the issue. Prime Minister Helen Clark has repeatedly said that move is "inevitable" but may take 20 years. The great majority of Labour, Progressive and Green MPs are republicans.

A number of National MPs also support the move to a republic. Former Prime Minister Jim Bolger (1990-97) favoured such a move, initiated (unsuccessful) legislation to remove appeals to the Privy Council and spoke approvingly of it at the constitutional conference referred to above. However, the National party opposed the Privy Council abolition and now opposes a republic. Its ally, the ACT party opposes a republic and at the time of the constitutional conference fomented media and popular opposition to even the idea that options might be talked about and asserted that the abolition of the Privy Council was intended by the government to lead to a "socialist republic of Aotearoa" by way of decisions of an activist Supreme Court!. New Zealand First and United Future also oppose a republic.

The public is uninterested in constitutional change and, when asked in opinion polls, a majority supports retention of the monarchy.

The Treaty and "sovereignty"

The dispute over whether in article 1 Maori tribes knowingly ceded (or even could have ceded) sovereignty has led some Maori to assert that sovereignty did not pass and remains with the tribes. This borders on a pure indigenous rights argument that Maori retain sovereignty by right of indigeneity. This position is argued by a small number of Maori.

Neither position is widely held, even amongst Maori. For all practical purposes it is accepted, as it has been by most Maori since at least the wars of the 1860s which forced resisting tribes into subjection, that sovereignty passed de facto. The Waitangi Tribunal has ruled that for its purposes sovereignty did pass.

The government has repeatedly stated that sovereignty rests with the Queen in Parliament and is indivisible.

However, there is another argument based on article 2. That article guaranteed Maori "tino rangatiratanga" -- full chieftainship -- over lands, forests, fisheries, villages and taonga (though the list is different in the English and Maori versions). A small number of Maori argue that this retains "sovereignty" for Maori at the tribal level.

This has become an element of the argument over the foreshore and seabed. Some Maori assert a right to ownership/control of tribally-connected foreshore or seabed "land" that derives from their tribe's continuing "sovereignty". This has prompted the Prime Minister to dismiss the opposition of some Maori to the government's proposals for administering the foreshore and seabed as arguments on sovereignty -- though by no means all of the arguments are, as one of her own Maori MPs, Nanaia Mahuta, who opposes the proposals, pointed out publicly in December.

Some Maori do actually mean "sovereignty" when they talk in this vein. But what most mean when they use the term is "self-government" within the sovereign state or some such lesser devolved role.

The Treaty and self-government, self-administration or devolved administration

The 1852 Constitution Act (s71) provided for the government to designate districts in which Maori law and custom would prevail. None were set up. The provision was not carried over in the comprehensive 1986 modernisation of the act.

More recently, some Maori, including Justice Eddie Durie, former Chief Judge of the Waitangi Tribunal, have argued that it would be possible to devolve a power for defined Maori groups to make bylaws, as do local councils. No government has seriously entertained this, however, and most political parties would likely oppose it.

At issue is whether and to what extent it is possible to devolve limited self-government in a state in which the populations are geographically (and demographically) thoroughly mixed. So far the furthest the state has been prepared to go is to allow limited self-administration. There is scope for some criminal matters to be dealt with on the marae if all parties agree; Maori educational institutions -- kohanga reo (kindergartens), kura kaupapa (schools), and waananga (tertiary institutions), conducted entirely or to a large extent in the Maori language -- are self-administered within parameters set by the Ministry of Education, the Qualifications Authority, which approves curriculums and monitors standards, and the Tertiary Education Commission; Maori health service agencies operate similarly; a range of agencies, such as Te Waka Toi (the Maori arts funding board) and Te Mangai Paho (the Maori Broadcasting Funding Agency) are self-administering under the aegis of general public service rules and guidelines.

But these agencies operate under devolved authority from central government. They are subject to monitoring (though sometimes this has been lax and there is a steady stream of media stories of money gone missing or misappropriated ) and the dictates of the State Sector Act and the Public Finance Act. Increasingly, some Maori argue that such agencies should be accountable only to Maori (either generally if a national agency such as Te Waka Toi, or to the appropriate tribe if a tribally based agency) and not to Parliament through those two cornerstone acts. In a different vein, some Maori argue that Maori educational agencies should decide the curriculum for students in their institutions and not be subject to the dictates of the Ministry of Education, the Qualifications Authority and the Tertiary Education Commission.

The Treaty and indigenous status and rights

The fact that the British government saw fit to negotiate cession of sovereignty with Maori tribes and that this is explicitly stated in the Treaty can be interpreted as according Maori status as the indigenous people. And even if that interpretation can be contested, Maori tribes are in fact now widely regarded as tangata whenua, the people of the land, in much legislation, public life and ritual. Indigeneity has been given sanction by law and practice.

[continued in Judges 2] .