Accommodating and Confronting Rangatiratanga

This latter would not matter under post-modernist arguments that the Treaty settlement discourse constitutes a ‘mask’ that ‘protects the construction of Crown unitary sovereignty’, ‘displaces claims for recognition of tino rangatiratanga’, and ‘reinscribes the colonisation process’. Most Maori leaders and observers, however, preferring action and results to theoretical contemplation, tend to see Treaty settlements as evidence of Crown recognition of rangatiratanga to a certain, not unimportant, degree. Over and above that, many believe that some types of organisational autonomy are now within the realms of possibility. Scholars and practitioners of rangatiratanga generally concur that there are ‘enough cross-ethnic common interests’ for ‘justice to be negotiated’ between Maori and the Crown, albeit probably on the basis of new foundational principles. The Waitangi Tribunal has noted that Maori autonomy does not necessarily need to conflict with Crown sovereignty, and most historical Maori assertions of have accepted the overarching sovereignty of the Crown. There is, moreover, a strong strand of international scholarship to the effect that indigenous self-determination can largely be accommodated within existing or perhaps slightly modified jurisdictional parameters.

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The political exercise of Crown sovereignty, then, can accommodate devolution, difference and even overlapping spheres of influence and control. It is not impossible to envisage ‘hybrid situations’, such as negotiated partnerships or even power sharing arrangements, which combine elements of what used to be called integration (as one would expect in a demographic environment of comingling and intermarriage) with those of self-determination. In New Zealand, these would ideally, in the words of the United Nations Special Rapporteur after his visit in 2006, amount to constitutional (or similar) reform embodying ‘positive recognition and meaningful provision for Maori as a distinct people, possessing an alternative system of knowledge, philosophy and law’.⁸

As scholars have noted, it is far from surprising that the Crown has not conceded to relinquish its full sovereign powers. But this still leaves room for many possibilities of Crown recognition of post-settlement or other governance regimes which could lay the foundations for both exercise of rangatiratanga and the establishment of a permanent autonomist nexus between Maori and Crown. With appropriate models for rangatiratanga still proving elusive by the end of the twentieth century, many Maori entities of disparate nature were engaged at that time in the quest for workable organisational forms. The fate of the Maori Congress did not dissuade some from continuing to develop ideas for federalised or centralised modes of organisation which would operate independently of the Crown and exert pressure on it as a kind of informal partner. One suggestion was for a ‘ruling council of elders to act as a policy-making and policy-deciding body’, so that tangata whenua could ‘make our own laws and make important decisions regarding our future as Maori’, advocating with the Crown where its decisions had relationship ramifications. Many groups proclaiming kotahitanga either formed or resurfaced in stronger form at this time, a few of them (such as the energetic ‘Confederation of the Sovereign and Independent United Tribes of Aotearoa’, which claimed a pre-colony lineage) professing not to recognise ‘pakeha’ law or governance in any way.⁹

But the Crown, not surprisingly, demanded that it be recognised and its rules respected. It was, moreover, prepared to talk with those self-determinationist groupings in which it perceived some kind of synergy between rhetoric and reality. A number of developments arising from such discussions had ‘created genuine space for Maori initiatives’, whatever the motivations from within the state might have been. At the end of the century, a meeting at Hopuhopu to discuss the possibility of alternative constitutional arrangements was just one of very many forums exploring ways of obtaining and embedding official acknowledgement for rangatiratanga. Some continued to focus on the parliamentary mode, calling for a ‘unified Maori political vehicle’ within the House of Representatives, or exploring the concept of a Maori House ofpage 284 Parliament. Several groups asserting kotahitanga were preparing to establish their own ‘parliaments’. Others preferred a localised approach, including taking up opportunities offered by programmes such as ‘reducing inequalities’. Despite its needs-based orientation, this did include ‘the goal of Maori and Pacific communities having the opportunity to control their own development and achieve their own objectives’.

But the next few years were to prove a disappointment to many in terms of their quest for state recognition of rangatiratanga. The needs-based discourse which underpinned Labour’s resiling from the closing the gaps programme was taken much further within the National opposition, including in directions which verged on racism. Even on the question of reparations, moreover, the Labour-led government of Helen Clark (1999 to 2008) had lost momentum – that is, until its final year of office, when Deputy Prime Minister Michael Cullen took over the portfolio of Treaty negotiations and presided over many signings between Crown and claimants. Meanwhile, Crown–Maori relations had been severely strained by the government’s adverse reaction to a 2003 judicial decision encompassing potential tribal ownership of portions of the foreshore and seabed. Fearful of the National politicians’ potential to ‘play the race card’, and cognisant of broader issues of power and ownership (as well as the stance of coalition partner New Zealand First), Clark and her ministers decided to strip tribal groupings of the right to take legal action to determine whether they had ownership interests. Having made that decision very quickly, they then declined to consult in any meaningful way with Maori.

This flagrant disrespect for rangatiratanga violated some of the central tenets of the 1989 Principles for Crown Action and was seen by many Maori as a more serious breach of the Treaty than the foreshore and seabed issue itself, on which a negotiated position that would suit all parties was not impossible to envisage. A huge protest hikoi to Wellington in 2004 was derided by the Prime Minister, and that year the government secured legislation which overturned the judicial ruling (while enabling negotiated arrangements, against the wishes of an even harder-line National opposition). The government’s refusal to even listen to the strongly voiced wishes of a united Maoridom was the catalyst for the formation of the Maori Party, a new manifestation of old strategies for seeking rangatiratanga through kotahitanga. By November 2008, the party had become so influential that it could negotiate two ministerial posts outside Cabinet (including Maori Affairs) in a support arrangement with an incoming National government.

Prior to the election, the Maori Party had indicated that, in pursuit of rangatiratanga, it would attempt to secure a governing arrangement recognising it as the Treaty partner with the Crown. Some commentators noted the extreme difficulty of such an aspiration, given the long history of the state’spage 285 successes in appropriating various autonomous Maori initiatives, structures and procedures. And as in the past, the Maori desire for autonomy constituted, for many, an implicit threat to the Crown’s supreme authority. In recent years, the growing number of Maori Members of Parliament under MMP had been gaining appreciation of the odds against achieving rangatiratanga, even at flaxroots level. In 1998, the Minister of Maori Affairs himself, Tau Henare, had noted that even the pioneering kohanga reo initiative was becoming a ‘sanitised, bureaucratised and standardised’ institution as a result of government compliance requirements.

Certainly, the hopes for partnership which had been so high in the late 1980s, and which had been dealt so major a blow by repeal of the Runanga Iwi Act, had not been met in either the following decade or the early twenty-first century. In the 1990s, the National government had tried to forge ‘relational’ rather than ‘structural’ ties with Maori, and this had seemed to have autonomist potential. Maori utilisation of post-1990 ideas of ‘rights-integration’, of negotiating ‘rights’ that were consonant with those of the broader community, also offered hope, surviving even the serious onslaught on rangatiratanga by the foreshore and seabed legislation. The enthusiasm at the turn of the millennium for ‘celebrating diversity’ similarly provided new opportunities, although it also brought dangers – such as attempts in some quarters to downplay the special place of Maori as tangata whenua and co-signatories to the nation’s iconic ‘founding document’, the Treaty of Waitangi, or even to deny that tangata whenua had a different place or status in New Zealand life to that of other citizens, including the most recent migrants from diverse nations.¹⁰