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Maori and the State: Crown-Māori relations in New Zealand/Aotearoa, 1950-2000

Past and Future

Past and Future

That being said, one can equally predict that what the Privy Council has called ‘the continuing needs of the state’ will continue to suffuse and underpin governmental attitudes towards rangatiratanga. In 2002, the Governor-General noted the Crown’s stated commitment in ‘fulfilling its obligations as a treaty partner to support self-determination for whanau, hapu and iwi’. But (in the words of a Te Puni Kokiri policy document) any recognition of rangatiratanga will need, in the eyes of the state decision-makers, to be ‘balanced against the duty of the Crown to exercise good government (kawanatanga) for all New Zealanders’. At times, in fact, ‘the demands of rangatiratanga are considered by the Government to be contrary to the national interest’. When convenor of the Maori Congress, Whanganui kaumatua Archie Taiaroa encapsulated many Maori responses on such ramifications of indivisible Crown sovereignty: ‘The New Zealand Government is saying that it agrees with self-determination of indigenous people, yet it must be at the behest of the Government’.

Using the terms of the Treaty-based rubric within which most such debates are conducted, the challenge can be depicted as that of finding arrangements for reconciling Article One (and, to a lesser degree, Three) with Article Two,page 291 of negotiating accommodations between kawanatanga/Crown sovereignty and rangatiratanga/Maori autonomy. Maori who pin their hopes on ‘the law’ being anything more than just one tool in what is essentially a political struggle will likely continue to be as frustrated as those who have relied on the justice system in the past. Even with a judiciary as sympathetic to Maori as it can be, the political executive and Parliament (and their advisers) will still make up their own minds, within their own politico-cultural paradigms, as to what constitutes the public good and how rangatiratanga fits into it. Laws, of course, can be changed if they are inconvenient. It is not conceivable that the state would consider relinquishing ultimate power, including the authority to decide not only on laws but also the exceptions to the ‘rule of law’.

All in all, any embedding of rangatiratanga into Crown–Maori relations will need (short of armed overthrow of the state, which has not been on any serious agenda) to fit the Crown’s self-chosen sovereigntist parameters. This does not, however, exclude the possibility of the state’s decision-makers re-examining their long-term insistence on a fully ‘indivisible sovereignty’ which precludes any fundamental or even significant degree of devolution, power sharing or partnership. It will not be easy to work out arrangements which satisfy the fundamental imperatives on ‘both sides of the Treaty relationship’, especially given the complexity within each: the state’s internal contestabilities and its majority pakeha citizenry, and the multiply-based and overlapping institutions of organisation and power within Maoridom.

While Maori might have good cause to feel frustrated at the slow progress towards Crown recognition of rangatiratanga, by the approach of the new millennium, unlike in 1950, the debate on ways of finding a modus vivendi between Crown sovereignty and Maori autonomy had become intense, public and nationwide. A state agency could now declare that ‘the Crown should support and enhance the exercise of rangatiratanga as far as it possibly can, limited only by its wider responsibilities to the nation’. Sociologist David Pearson has noted that by the time of the sesquicentennial commemoration of the signing of the Treaty of Waitangi, whereas the ‘one people, one nation’ idea had always been illusory, the replacement dream of ‘two peoples, one nation’ was one that seemed attainable – even if it remained a ‘Dream Deferred’.16

For Maori to gain Crown recognition of te tino rangatiratanga, decision-makers on both sides will need to explore ways of genuinely meeting indigenous aspirations. Unless ‘relative degrees of power’ can be accommodated in a fashion satisfactory to all affected parties, New Zealanders remain set to reprise in new form the essential experiences of the past – in which ‘solutions’ accepted by Maori as the maximum achievable in the circumstances turn out to be, at very best, ‘on account’ ways of embedding rangatiratanga. Overall, the need to address rangatiratanga has been increasingly recognised within thepage 292 state through time, even though such appreciation has developed unevenly and been subject to delays and retreats as well as to advances. Early in the twenty-first century, a paper before the Cabinet Policy Committee acknowledged that ‘[w]hen historical grievances are finally behind us, when Maori take their place fully alongside other New Zealanders in socio-economic terms, there will still be a distinct Maori culture, a distinct indigenous people with whom the Government will continue to have a special constitutional relationship’.

It was rare to find anything even approaching such sentiments within the state or pakeha society half a century before; in the early years of the new millennium, they were common, although often cautious about the use and meaning of the word ‘constitutional’. In 2004, Parliament established a Constitutional Arrangements Committee to ‘undertake a review of New Zealand’s existing constitutional arrangements’, and many Maori, including the co-leader of the Maori Party, projected into the ensuing debate the notion that rangatiratanga was at ‘the heart of the relationship’ between Crown and Maori. While this episode, as with many of its predecessors, ended inconclusively, constitutional scrutiny was one of the concessions the Maori Party received in late 2008 in return for its support role for the new National government.17

Autonomist issues, then, remain a central item of national political and cultural discourse, despite (and because of) the nation’s growing multiculturalism and ‘celebration of diversity’. In the words of one academic commentator of Indian origin: ‘The chief purpose of public policy in New Zealand in relation to Maori must be the creation of constitutional-political structures and processes which enable Pakeha and Maori (as well as the other ethnic components) to live in peace and harmony, and which facilitate the growth, in the long run, of an integrated new nation based on Western as well as on Maori ways of life and values’. There were ways, he believed, of ‘reconciling New Zealand with Aotearoa’. Of the various suggestions in the ‘national conversation’ at the turn of the millennium, the concept of a ‘middle way’, guaranteeing both indigenous authority and the overarching authority of the Crown, was among those most frequently explored. One variation of this envisaged a post-colonial ‘contract’ between Crown and Maori on the basis of broad societal agreement on such issues as partnership, equity, inclusiveness, open mindedness and ‘workable mutuality’ at social as well as political levels.18

16 Privy Council Office, ‘Attorney General v. Henry Michael Horton and Another, Judgment of the Lords of the Judicial Committee of the Privy Council, Delivered the 8th March 1999’, 7 March 2002, http://www.privy-council.org.uk/files/pdf/JC_Judgments_1999_no_9.pdf [accessed June 2008], p 4 (for ‘the continuing needs’ quote); Young, Audrey, ‘NZ urged to give treaty certainty in law’, New Zealand Herald, 18 Sept 2002 (for ‘fulfilling its obligations’ quote); Te Puni Kokiri, ‘Treaty Framework’, p 5 (for ‘balanced against’ quote), p 6 (for ‘demands of rangatiratanga’ quote), p 7 (for ‘Crown should support’ quote); Dawson, Richard, ‘“Rights” and Policy’, Institute of Policy Studies seminar paper, 16 Nov 2000, p 5 (for ‘New Zealand Government’ quote); Minogue, Waitangi, p 86; Jackson, Moana, ‘Seabed deal plainly not fair to Maori’, New Zealand Herald, 22 Dec 2003; Pearson, A Dream Deferred, p 246.

17 Constitutional Arrangements Committee, New Zealand Parliament, ‘Terms of reference’, 16 Dec 2004 (for ‘undertake a review’ quote); Ladley, ‘The Treaty’, p 23 (for ‘relative degrees of power’ quote); Cabinet Policy Committee, paper, 21 Feb 2000, para 28, (for ‘historical grievances’ quote); Turia, ‘Flying the Flag’ (for ‘the heart’ quote).

18 Vasil, Biculturalism, p 1 (for ‘chief purpose’ quote); Maaka and Fleras, The Politics of Indigeneity, p 255ff (p 296 re ‘middle way’); Dawson, The Treaty of Waitangi, p 240 (for ‘workable mutuality’ quote). On the need for constitutional change, see also the contributions to James (ed), Building the Constitution; Kelsey, ‘Māori, Te Tiriti’, p 82; Brookfield, F M, Waitangi and Indigenous Rights: Revolution, Law and Legitimation, Auckland, 1999, pp 169–84; Dahlberg, Tina R Makereti, ‘Māori Representation in Parliament and Tino Rangatiratanga’, He Pukenga Korero, 2(1), 1996; Durie, Mason, ‘A Framework for Considering Constitutional Change and the Position of Maori in Aotearoa’, in Ngā Kāhui Pou: Launching Māori Futures, Wellington, 2003; Durie, Mason, ‘Tino Rangatiratanga’; Hall, Donna, ‘Maori Governance and Accountability’, in Hayward, Janine and Wheen, Nicola R, The Waitangi Tribunal: Te Roopu Whakamana i te Tiriti o Waitangi, Wellington, 2004; Sharp, ‘The Treaty in the Real Life’.