BY WHAT RIGHT DOES THE CROWN RULE?

This week the Crown opened its case in the Kaitāia Court against the Rangiāniwaniwa Six with an unsuccessful attempt to have the expert evidence of Professor Margaret Mutu not heard by the Court.  That evidence is about who actually owns the land at Kaitāia airport.  It was filed last month and makes interesting reading.  More importantly it raises important constitutional questions about the legitimacy of the trespass charges laid by the Crown against the six when it evicted them from the airport last year. 

Another interesting read also became available last month, and it too raises important constitutional questions.  A Constitution for Aotearoa New Zealand is the latest book from former Prime Minister and Attorney General, Sir Geoffrey Palmer.  Co-written with Dr Andrew Butler of Russell McVeagh, it argues for a written constitution in this country that will hold government accountable, transparent, responsive to, and reflective of the values of all citizens of Aotearoa New Zealand.

A values-based constitution for this country is also the focus of Matike Mai o Aotearoa (the Independent Constitutional Transformation Working Group) who have identified seven key constitutional values; the value of tikanga, the value of community, the value of belonging, the value of place, the value of balance, the value of conciliation, and the value of structure.

Both the Matike Mai Report and the Palmer / Butler book note that the Māori renaissance challenges the constitutional orthodoxy which holds that the Crown legitimately acquired sovereignty in the 19^th century.  

One commentator, Otago University law professor Andrew Geddis, poses the questions, “If, in fact,…[Crown sovereignty] was accomplished not by consensual transfer, as the Waitangi Tribunal found in its Te Paparahi o te Raki report, but rather by force or diktat, then by what right does the Crown rule? And, if it doesn’t have such a right, then don’t we need to establish a new constitutional settlement that more justly sets out the basis for Crown-Māori relations?”

Another commentator, Rhodes Scholar Max Harris notes, “Some say that ‘if it aint broke, don’t fix it’. But one question we don’t often ask is: from whose perspective are we judging whether the system is broke? From the perspective of some groups who have been at the end of unjust legislation in recent years, like the Foreshore and Seabed Act 2004, or the 2010 legislation banning all prisoners from voting, the system is very much broken and does need fixing. I think the perspectives of these groups need particular weight. They know what it’s like to face unconstitutional legislation and not to be able to do much about it.”

Add to that list the Rangiāniwaniwa Six.  Having already been trespassed from land they own, they also faced being denied the right to prove their ownership in Court.  For them a values-based constitution did not come in time.  However they and their cause have contributed to its eventual arrival.

CONSTITUTIONAL VALUES

In 2010 Matike Mai o Aotearoa (the Independent Working Group on Constitutional Transformation) was tasked by the Iwi Chairs’ Forum “to develop and implement a model for an inclusive Constitution for Aotearoa based on tikanga and kawa, He Whakaputanga o Te Rangatiratanga o Niu Tireni (1835), Te Tiriti o Waitangi (1840), and other indigenous human rights instruments which enjoy a wide degree of international recognition”, like the United Nations Declaration on the Rights of Indigenous Peoples. 

In 2015, the Working Group reported their findings and recommendations which are based on the people’s feedback from more than 300 hui, as well as numerous written submissions, completed questionnaires, focus groups and one-on-one interviews. 

Their report is written in five parts and to date this column has covered Part One which discusses the Nature of Constitutions and Part Two which looks at various Constitutional Foundations.  This week we begin to cover Part Three which lays out the Constitutional Values that arose from the people’s kōrero.

[1]Sometimes the “values talk” was quite explicit; other times it was implied in the way people discussed tikanga or the nature of the relationships that a constitution should guarantee. At a number of hui the kind of equal constitutionalism provided for in Te Tiriti was itself seen as a value.

Other values ranged from the importance of the land, to respect for all living things. This included the prime relationship with the natural world and an understanding that the wellbeing of humans depended upon the well-being of Papātūānuku as a living entity rather than a resource. 

 

Another value that was frequently referred to was the equality of men and women and the preservation of good relationships between people in general. There was also a belief that a constitution should enhance the sense of belonging that Te Tiriti reaffirmed for Māori and offered to others. 

Some of the values that were identified were more structural and related to constitutional conventions such as transparency and fair representation. They included a requirement that a constitution should have specific provisions to promote equality and intergenerational fairness as well as specific mechanisms to e
nsure that the rights and obligations of Māori were not subordinated to those of the majority. 

In the Working Group’s considered view, the identification of such values, and the serious and lengthy consideration people gave to them, indicates a very real desire for a more responsive and open constitutionalism. It also indicates in their view a hope that a constitution based on Te Tiriti would allow for what they describe as a conciliatory and consensual democracy rather than the adversarial and majoritarian one that currently exists in this country. 

Next week we will cover the Working Group’s summary of the key constitutional values identified from the people’s korero, and in the following weeks we will consider each of those values in detail.

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[1] Twenty-fifth edited extract from p. 68 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

SELF DETERMINATION

When considering constitutionally protected indigenous governments from around the world, Matike Mai o Aotearoa (the Independent Working Group on Constitutional Transformation) received feedback on the Sami Parliament in Norway, the Bolivian Constitution, and several First Nations governments in North America. 

But one example of indigenous governments that the Working Group did not cover are the indigenous devolved governments in countries like the United States, Canada, Australia, Mexico, France, Spain and the United Kingdom.  In the UK these include the Northern Ireland Assembly, the Scottish Parliament, and the National Assembly for Wales.

The reason these governments were not covered by the Working Group is that none of them have any constitutional protection, even the Scottish Parliament which enjoys a quite high degree of independence. 

Instead each of them were created and granted limited statutory powers by the Government of the United Kingdom; and they can be dissolved and have their powers amended or repealed altogether by that same government. 

These do not represent the kind of constitutionally protected right to self determination that we are working towards as part of constitutional transformation.  However, in spite of their limitations and shortcomings, they all were created in response to the desire of their indigenous people for self government, a desire shared by the indigenous peoples of New Zealand.

[1]In reality all governments, including indigenous ones, are imperfect.  But as acknowledged by the late Lakota Sioux jurist Vine DeLoria, who was often a critic of the policies of some Tribal Governments, the values and rights they represent are important because –

“Whatever the shortcomings of these government structures they are for many…an honouring of ancient treaties and an even more ancient constitutional tradition and authority…and because of the genius of our people, and the genius of all Indigenous Peoples I know, they are a vehicle through which we can exercise our sovereignty and find some way to maintain our law and our rights…better to have that than have [someone else] exercising it for us”. 

After the discussions on Indigenous Governments from around the world, the Working Group concluded that there is value in studying the principles and practices that other Indigenous Peoples have used to give constitutional form to their equivalent of mana and rangatiratanga. Although often limited in their jurisdiction and funding they provide working examples of how a different form of governance can function and work alongside other governing systems.

More importantly they are expressions of the right to govern. They give effect to the same constitutional ideals for self determination our people acted upon for centuries and which Te Tiriti guaranteed we should continue to do. 

Next week we will begin consideration of the kinds of values upon which we may transform our constitutional arrangements in New Zealand.

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[1] Twenty-fourth edited extract from p. 68 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

NATIVE AMERICAN GOVERNMENTS

[1]The Tribal Governments operating on many Native American reservations are perhaps the most commonly known examples of how Indigenous Peoples exercise governance.

Some participants at the hui of Matike Mai o Aotearoa (the Independent Iwi Working Group) had visited or worked on reservations and shared their experiences.  Some of the members of the Working Group were also familiar with them.

In practice they are quite confined by Federal law and often merely mimic Federal or State structures. However as with the Sami Parliament the fact of having a government was simply accepted as part of who they are. It was an institutional expression of their rangatiratanga and thus their constitutional right to govern themselves. 

A participant who had worked on the Navajo Reservation in Arizona noted –

 

“What always impressed me was not that they had their own government or their own courts or their own Police Force and schools so much as the way that everyone simply believed that it was all completely natural…no-one argued about whether they had a right to it or whether it was separatist, they just did it…they knew it didn’t always work perfectly but they knew it was their absolute right to have it and that they would eventually fix its flaws because it was theirs. The idea that they shouldn’t have it or might have ever given it away was simply foreign to them…it was the practical expression of their sovereignty and everyone believed in it from the elders to the mokopuna.”

Others commented on the importance of having some similar institutional recognition of rangatiratanga –

“If self determination means anything then it has to mean the same thing for everyone…Apache or Hawaiian or Ngāti Awa or Ngāti Te Ata or whoever…that’s why what the Native Americans have managed to do is so important and why we need something like it here…it gives an actual real place to say this is our mana and this is what it means in practice”.

“Native Americans I know admit there are real issues in some Tribal Governments…like there are with any government, but it’s theirs and they have the chance to decide what its priorities and values are in a much more effective and real way than we do…that’s a real important difference and I can’t help thinking they are much closer to their rangatiratanga than we are”. 

“At least on the reservations people can point to their government or their courts and say ‘That’s our mana in action’ and that’s a real boost for them…here all we’ve got is the words or some Crown entity like a Trust Board or a PSGE and that’s not the same because they are Crown entities not ours…they might control some pūtea but can you imagine the Crown allowing a Trust Board to set up its own court or charging rates?”

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[1] Twenty-third edited extract from pp. 67 – 68 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

THE BOLIVIAN CONSTITUTION

[1] As part of their constitutional transformation mahi, members of Matike Mai o Aotearoa (the Independent Iwi Working Group) researched other models of indigenous governance. 

These provided helpful starting points about how constitutionalism is understood by other tangata whenua and how it can be given effect. Last week we considered the Sami Parliament, and this week we consider the Constitution of the State of Bolivia.

Some features of the Bolivian constitution were known to a number of participants in the Working Group process. Some had actually spent time in Bolivia and many others also knew something of the process involved in its drafting. Many also knew that the current President of Bolivia, Evo Morales, is indigenous. 

However what attracted interest was not the detailed provisions of the constitution but the indigenous values which underpin it. Indeed many participants saw parallels with Māori perspectives on a number of issues, especially the importance of the environment and the relationships people have with it and with each other. 

The Preamble for example begins with the value of “belonging” and the interrelationships between the land and the people –

“In ancient times mountains arose, rivers formed and lakes were formed…We populated this earth with different faces and since that time have understood the plurality that exists in all things”.

It also recognises the primacy of Pachamama or the Mother Earth

           "We found Bolivia anew, fulfilling the mandate of the people 
             and the strength of our Pachamama…”

The recognition of the relationships with the earth is in effect the Prime Law of the Constitution from which everything else flows, including certain tikanga or basic values

“Everyone has the right to a healthy, protected and balanced environment…and to suma qamara (live well) and nandereko (live harmoniously)”.

A number of written submissions referred directly to the Bolivian constitution 

"There seem to be numerous parallels with our world view, especially the idea of kaitiakitanga and the responsibility everyone should have towards Papatūānuku … but enshrining them in a constitution gives them a meaning and force that is currently missing here. They give a model for what is possible”.

“When I was in Bolivia last year I was struck by the similarities as well as the differences but I was impressed most of all by the fact that they could draft an indigenous constitution that allows for modern governance while drawing on such a rich tikanga … It displays a real confidence in the people’s ability to meet new challenges both domestically and internationally and also shows how colonisers and Indigenous Peoples can work together within a shared constitutional framework. It also shows what could happen here if the guarantees in Te Tiriti are ever met”.

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[1] Twenty-second edited extract from pp. 65 – 67 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

THE SAMI PARLIAMENT

[1] As part of their constitutional transformation mahi, members of Matike Mai o Aotearoa (the Independent Iwi Working Group) researched other models of indigenous governance. Additionally a number of participants at the hui held between 2010 – 2015 tabled information about indigenous government institutions they had visited or were familiar with. 

Everyone recognised the different circumstances of those institutions, as well as their limitations. However they did provide helpful starting points about how constitutionalism is understood by other tangata whenua and how it can be given effect. The hui found three examples of particular interest, the first being the Sami Parliament.

The Sami Parliament or Samediggi was established in Norway in 1989. It has an elected plenary body of thirty nine representatives and deals with political initiatives relevant to the Sami people. 

Although its current practical powers are modest it recognises the idea of different “spheres of influence” that the Waitangi Tribunal referred to in the Paparahi o te Raki claim.  Its importance is the practical recognition it gives to the Sami and their rights.  A former member of the Sami Council, the late Leif Dunfjeld, commented – 

“What has always been vital to us is being able to give some institutional and constitutional form to our right of self determination. Moving it from a right just talked about or an ideal just argued over with the Norwegian government to what is now a functioning practice has been a reclaiming of who we are … We are in a different constitutional relationship with the State now which is based on our political authority and we haven’t had a mechanism to exercise that for centuries”.   

Some contributors at the hui had met or hosted Sami delegations and were aware of the restrictions under which the Samediggi currently operates. However they also regarded the constitutional and institutional recognition of it by the Norwegian government as an important precedent for Māori and other Indigenous Peoples –

“The situations are really different but having some place where their rangatiratanga is exercised is much better than the kind of ad hoc process we have here where the Crown doesn’t even acknowledge a constitutional role for us unless it’s on their terms and in their system. At least they have a Parliament where they can come together as a people in a constitutional framework rather than just the hui we have to have whenever we need to react to something the Crown is doing”.

 

“When they were here they talked about the hara they used to have deciding mandates and … and all of the other issues that most of our Iwi Authorities are plagued with. But now that they are in a formal constitutional relationship with the Norwegian government and have their own institutions and governing body, a lot of those problems seem to have disappeared.”

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[1] Twenty-first edited extract from pp. 63 – 64 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

THE UN DECLARATION AS A BENCHMARK

[1] In any discussion of constitutional transformation, Matike Mai o Aotearoa (the Independent Iwi Working Group) accepts the importance of the United Nations Declaration on the Rights of Indigenous Peoples.  Like other documents such as the Mataatua Declaration it provides an international benchmark against which the exercise of rangatiratanga may be defined and measured.

The rights it espouses, and particularly the right of self determination, are living rights that inhere in humans as peoples, not as subjects of some political order.  The UN Declaration is therefore an absolutely appropriate baseline to be considered in the development of a new and inclusive constitution.

It is an international mirror of rights and authority that Māori have always had, and is thus an adjunct to Te Tiriti and what it should mean in terms of self determination as both a human right and a capacity to once again make our own decisions.

Most of all the Working Group acknowledged the mana that Māori accord the Declaration –

“We are now trying to use the UN Declaration whenever we can.  I remember when James Anaya (the former UN Special Rapporteur on the Rights of Indigenous Peoples) was here he said something like, ‘It’s your rights. It’s your Declaration.  Make it work for you.’  And it does recognise all those things we talk about in the treaty.”

“We wanted it (the Declaration) in our Deed of Settlement, but the Crown refused.  But we still see it as a kind of supplement to Te Tiriti and He Whakaputanga … It’s an international statement of the things our people have been saying since 1835, and can be another benchmark for what we are talking about now.”

Although the Declaration is concerned with existing relationships with States that are quite different to those contemplated in this constitutional transformation process, it is nevertheless relevant because it is the sum of what literally thousands of Indigenous Peoples have regarded as a minimum international set of human rights.

Symbolically it is also important because the inclusion of the right to self determination was only achieved after years of struggle by Indigenous Peoples against governments (including the government of New Zealand) that sought to deny it.

The success of that struggle can give hope and reassure people that the difficulties involved in constitutional transformation can be overcome.

Next week we will begin considering indigenous constitutions in practice. 

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[1] Twentieth edited extract from pp. 62 – 63 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

UN DECLARATION - THE ARTICLES

[1] The United Nations Declaration on the Rights of Indigenous Peoples comprises 46 articles.  In the course of the hui held by Matike Mai o Aotearoa between 2010 to 2015 a number of those articles were referred to, including the Preambular Statement –

“Recognising the urgent need to respect and promote the … rights of Indigenous Peoples which derive from their political, economic and social structures and from their cultures spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources …”

The particular articles people felt were most relevant were

“Article 3 – Indigenous Peoples have the right to self-determination.  By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

Article 36 – Indigenous Peoples have the right to recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with the States of their successors and to have States honour and respect such treaties, agreements or other constructive arrangements.”

For many participants the Article 3 definitions of self-determination were also apt descriptions of rangatiratanga.  In their view it therefore had real relevance in the development of a tikanga and treaty-based constitution –

“Really rangatiratanga is just us determining our own destiny which Article 3 talks about.  I’m not fussed whether there are all sorts of legal arguments about whether the Crown will let the Declaration be used … or even when self-determination really applies because I just see it as another statement about our rights, and in a way that’s what all the kōrero is about.”

“When our tūpuna went overseas in the early 19^th century and came back with all sorts of new ideas about farming and roading and so on, they also came back with new political ideas about how Hapū might organise themselves to meet the new times they were in … we’ve never been afraid of claiming international precedents and that’s all the Declaration is – another way of helping see our rights and our tino rangatiratanga at an international level as well as here at home.”

“The Declaration probably isn’t perfect, but like Te Tiriti it’s there for us to use … and if we can use it like Te Tiriti by holding on to what it says about our rangatiratanga or self-determination and then trying to give voice to it, that will be of real value to this mahi.”

Article 36 was considered particularly important because of the Crown’s ongoing use of Te Tiriti as a treaty of cession

“That Article 36 is really interesting when it talks about enforcement, because the Crown thinks it’s enforcing Te Tiriti, but it only does that because it says we let them take our mana.  That’s not enforcing Te Tiriti, it’s enforcing what the Crown wanted it to be.”

More on this next week.

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[1] Nineteenth edited extract from pp. 62 – 63 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa