THE MAORI SITE AND CONCEPT OF POWER

[1]  Like every indigenous nation, our Iwi and Hapū developed unique constitutional systems based upon our own history and cultural reality.  As we developed distinct dialects and attachments to whenua, we became polities that constructed our own concepts and sites of power.

We were never a lawless people because we developed a philosophy of law to regulate our behaviour, and devised ways to make ordered political and constitutional decisions.  Governing ourselves and the right to make our own decisions are an inherent part of who and what we were, because we were never power-less. 

Our concept of power was known generally as mana (and much later in the 19^th century as rangatiratanga).  It was also defined in some Iwi and Hapū as mana motuhake, mana taketake, or mana tō rangapū. It implied an independence that Dame Mira Szaszy once defined as “the self-determination” implicit “in the very essence of being, of law, of the eternal right to be, to live, to exist, to occupy the land.”

Our concept of mana as a political and constitutional power denotes an absolute authority because it was absolutely the prerogative of every polity.  It was also absolute in the sense that it denoted an independence and exercise of authority that could not be tampered with by any other polity.

Our site of power was vested in the institution of ariki and rangatira who were charged with the responsibility of making decisions.  John Rangihau once noted that “rangatiratanga was people-bestowed and could only be exercised in a way that the people thought was tika.”

As such, all rangatira learned that good leadership depended upon how well they responded to their people, and how well they were able to protect them and their whenua.  In a well-known aphorism the rangatira Manuhuia Bennett described the necessary attributes of rangatiratanga in a way that sums up its constitutional and cultural parameters –

“Te kai a te rangatira, he kōrero.

  Te tohu o te rangatira, he manaaki.

  Te mahi a te rangatira, he whakatira te iwi.”

The ‘kai’ of the rangatira, and thus the sustenance of mana, is not just the gift of oratory but also the responsibility to heed and articulate the voice of the people.  The ‘tohu’ is the obvious obligation to care for both the people and any manuhiri, while the ‘mahi’ or prime role of rangatira is to keep the people together with all the necessary implications to husband and care for the taonga of Papātūānuku which that entails.

Like all cultures our people recognised that we could not survive in a power vacuum, and from the earliest days of colonisation we have endeavoured to assert and maintain the essential constitutionality of our relationship with the Crown through our own concepts and sites of power. 

We will explore these further next week.

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[1] Fifth edited extract from pp. 33 – 34 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation.

CONCEPTS AND SITES OF POWER

[1] The Westminster constitutional system developed in the particular cultural circumstances of England.  Its hierarchical structure, headed by the Crown or sovereign, grew out of the historical tensions between the monarchs and those deemed to be below or in opposition to them.

It is a distinct artefact that over the centuries has sought to accommodate the long-disputed interests of the nobility, the Church and the “lower classes” while preserving the notion of individual property rights.  Its concept of power became known as sovereignty which was exercised in a site of power known as Parliament.

Although sovereignty is generally understood as an English or Westminster construct, it was first defined in France by the political philosopher, Jean Bodin, in 1569. 

Bodin’s view of sovereignty was essentially based in a belief that it marked a hierarchy of progress from societies of “apolitical barbarism” (such as those of the recently “discovered” Indigenous Peoples in the Americas) to those countries in Europe with a “civilised” constitutional order.  It presumed that proper political power could only exist once “man … purged himself of troubling passions” and moved up “the great chain of being … and its hierarchical order.”

Once a people became “civilised” they attained the reason to vest power in a sovereign, “a single ruler on whom the effectiveness of all the rest depends.”  Sovereignty was thus the “most high … and perpetual power over the citizens”, and it was that power “to which after immortal God we owe all things.” 

The site of that power throughout Europe was the monarch, or alternatively the “monarch in Parliament”, which had absolute authority and dominion over the land and its peoples. It was that culturally defined notion of constitutional authority which the Crown brought to Aotearoa after 1840.

Yet other nations also developed their own quite different concepts and sites of power within their own distinct cultures.  For example the Haudenosaunee Confederacy is made up of six different nations who came together in territories that now stretch from Upper New York State to Southern Quebec.

Constitutionalism in their cultural context is about making joint decisions in accordance with their concept of power known as the “Kaswentha” or Great Peace.  It does not presume dominion over the land, but rather acknowledges the need to live with it.  The earth is the Mother, and all human authority ultimately derives from her.

The Haudenosaunee site of power was a “long house” within which decisions were made to maintain what the current Faith Keeper of Haudenosaunee, Oren Lyons, has called “the good relationship between humans and the universe.”  It was an institution based upon a relational ideal of constitutionalism.

Every indigenous nation developed similarly distinct concepts and sites of power consistent with their view of the world. 

Next week we will begin to consider the Māori concept and site of power.

[1] Fourth edited extract from pp. 32 – 33 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation.

A CULTURAL CREATION

[1] Prior to 1840, Iwi and Hapū were vibrant and functional constitutional polities with the right, capacity and authority to make politically binding decisions for the wellbeing of our people and the protection of our lands.

That authority was exercised within the construct and values of our own culture, and was part of a unique constitutionalism that jealously guarded the independence of each polity, while stressing the interdependence that is fundamental to whakapapa.

It included the obligation to maintain the peace or make war, the right to define what we would now call citizenship, and the authority to decide who could enter into our jurisdiction as immigrants, what tikanga would govern their presence, and what entitlements, if any, they might be granted.

In spite of all that has happened in the last 176 years to the effective practice of that constitutionalism, those who took part in the 252 hui held by Matike Mai Aotearoa (the Independent Constitutional Working Group) between 2012 – 2015 are clear that our right to it remains intact.

“I can’t see how we could have existed without mana, meaning that we governed ourselves … You just have to look at all of the things we did before Pākehā came to know that.  We made mistakes … but humans do that everywhere … it doesn’t mean they’re not in charge of their own lives.”

“Of course we governed ourselves.  I’m Tūhoe and I know that no other Iwi had the right or would even claim the right to make decisions for us … and because we never signed the Treaty we never intended to let the Crown do what other Iwi had never been able to do to us before 1840.”

“I don’t know of any people who never governed themselves.  Self-determination is just a reality which our tūpuna lived every day.  It was real because they did it, and they would literally fight to keep it.”

While constitutionalism and government are often regarded as complex ideas, they are really very simple.  Government is the process we choose to regulate our affairs, and a constitution is the code we use to describe how government will function.   

Constitutions are based on “a concept of power” and “a site of power”.  The concept of power is the philosophy a society develops about what constitutional authority is, and the values or interests that underpin it.  The site of power is the institution or place where a society decides the authority may be exercised and the limits that might, or might not, be placed upon it.

Every way of governing, every concept and site of power, is based upon and gives expression to the values of the people from which it comes, and which in turn it is designed to serve.  Like the law of any society, a constitution is a cultural creation.

Next week we will briefly consider the Western concept and site of power.

[1] Third edited extract from pp. 30 – 31 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation.

A RESPECTFUL RELATIONSHIP

Ever since 1840 Māori have sought a respectful and equal constitutional relationship with the Crown as promised in Te Tiriti o Waitangi.  That has not occurred, as the history and consequence of colonisation too clearly show.[1]

 

Yet Māori have never abandoned the treaty promise.  Whether it was the establishment of Kotahitanga or the Kingitanga, or the discussions prior to the first sitting of the Māori Parliament at Waipatu in 1892, or even the establishment of Māori Congress nearly a century later, the kaupapa of constitutionalism has always been present.

When the Iwi Chairs’ Forum was established at a National hui held at Takahanga Marae in Kaikoura in 2005, it was the latest step in that history of revitalising tino rangatiratanga and seeking a proper treaty-based relationship with the Crown. 

Shortly after its establishment, the Forum established a process of meeting Ministers and officials of the Crown.  But by 2010 it was concerned about the lack of progress being made on key issues such as water use management, the environment, housing, education, welfare, and treaty settlement policy. 

In some cases, any options offered by Māori were simply ignored or subordinated to Crown policy imperatives, and a sense developed that the lack of progress was not just due to Crown disinterest or to a disconnect between the policy aspirations of the Crown and Māori.  Rather the cause was a fundamental imbalance between the Crown’s exercise of constitutional authority and the constitutional powerlessness of Māori.

That realisation was not new.  Forum members were all well-acquainted with the Crown’s exercise of unilateral power ever since the signing of Te Tiriti o Waitangi.  Indeed the very notion of Crown breaches of Te Tiriti is, at its core, a question of constitutionalism and the use, or misuse, of the power taken by the Crown in 1840.

Therefore the Forum sought advice on a number of constitutional issues.  At its August 2009 hui at Hopuhopu, Judge Caren Fox presented a paper, “Change, Past and Present”, noting that, historically, tūpuna Māori were familiar with the notion of political autonomy and had long developed a fluid and dynamic constitutionalism that provided a natural “rhythm” and order to Māori society.

At the Forum’s next hui at Haruru in February 2010, reference was made to another paper, “Constitutional Transformation”, written by lawyer Moana Jackson in which the concepts of Māori constitutionalism were further explained. 

After more discussion, a constitutional plan of action was proposed, including the formation of Matike Mai Aotearoa, the Independent Working Group on Constitutional Transformation.  Membership of the Working Group consisted of iwi and other representatives chosen for their tikanga or constitutional expertise.  Extra members were co-opted from time to time, and kaumātua and kuia were approached for advice and guidance.

In spite of funding restraints, they eventually held 252 hui between 2012 and 2015, and their report was officially released in February 2016.  Its findings strengthen the quest for the respectful and equal relationship promised in Te Tiriti.

[1] Second edited extract (pp. 12 – 13) of He Whakaaro Here Whakaumu Mo Aotearoa, the Report of Maite Mai Aotearoa – The Independent Working Group on Constitutional Transformation.

CONSTITUTING AOTEAROA

Over the next few months this column will feature extracts from the Matike Mai Aotearoa Report on Constitutional Transformation which is already attracting a lot of commentary, both good and bad.

That commentary is indicative in itself that the report is already fulfilling one of its most critical recommendations – i.e. the promotion of ongoing formal and informal korero amongst the peoples of Aotearoa about the need for and possibilities of constitutional transformation in our beautiful land.

[1] Matike Mai Aotearoa, the Independent Working Group on Constitutional Transformation, was first promoted at a meeting of the Iwi Chairs’ Forum in 2010.  The Terms of Reference given to the Working Group were deliberately broad –

“To develop and implement a model for an inclusive Constitution for Aotearoa based on tikanga and kawa, He Whakaputanga o te Rangatira o Niu Tireni of 1835, Te Tiriti o Waitangi of 1840, and other indigenous human rights instruments which enjoy a wide degree of international recognition”.

The Terms of Reference did not ask the Working Group to consider such questions as “How might the Treaty fit within the current Westminster constitutional system” but rather required it to seek advice on a different type of constitutionalism that is based upon He Whakaputanga and Te Tiriti.  For that reason this Report uses the term “constitutional transformation” rather than “constitutional change”.

A Forum Representative, Professor Margaret Mutu, was appointed the Working Group Chair and Moana Jackson was invited to be its Convenor.  Members of the Working Group were nominated by Iwi and other organisations or were co-opted.  The Chairperson and Convenor facilitated 252 hui between 2012 and 2015.  The rōpū rangatahi that was convened by Veronica Tawhai presented 70 wānanga.

The Working Group also invited written submissions, organised focus groups, and conducted one-on-one interviews.  The views they received canvassed a number of topics such as the relationship between Te Tiriti and democracy, what is meant by a treaty relationship, what is a constitution, and other related issues such as –

-         The meaning of tikanga and its constitutional relevance.

-         The relationship between the Hapū referred to in Te Tiriti and the current Crown policy emphasis on Iwi.

-         The effects of increasing immigration of the Tiriti relationship.

-         The ongoing implications of the emigration of our people overseas.

-         How to engage with others to progress the kaupapa.

The Matike Mai Report synthesises those views and acknowledges both the complexity of the issues our people were asked to address and the insights which they brought to the whole kaupapa.  It also recognises, as our people did, that there will be opposition to the ideas presented and that more work needs to be done. 

The Report should be read as part of an ongoing dialogue into the future.  We stress however that it is not a new dialogue as the kaupapa of constitutional transformation has been part of Māori political debate for over 170 years.

Copies of the report are available online and from Te Runanga-a-Iwi o Ngati Kahu. 

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[1] First edited extract (pp. 14 – 17) of He Whakaaro Here Whakaumu, the Report of Matike Mai Aotearoa – The Independent Working on Constitutional Transformation

LEGITIMATE OUTCOME

As sovereign nations seeking constitutionally legitimate outcomes that protect our human rights, including the right to govern ourselves, Tangata Whenua regularly reflect on the constitutional foundation, philosophies and values of our own sovereignty. 

For the record, our sovereignty derives from pre-European rangatiratanga and can be traced from He Wakaputanga o Te Rangatiratanga 1835 through to Te Tiriti o Waitangi 1840, then on to current international instruments like the Declaration on the Rights of Indigenous Peoples.  These documents all enshrine our authority to govern ourselves, and to relate to Tangata Tiriti in a way that is right and just.  That foundation has never changed.

Our philosophies also remain largely unchanged.  In February 1840, the treaty offer of kāwanatanga to the Crown was enough to reassure our tūpuna Rangatira that their sovereignty remained intact and that the treaty was predicated on three main grounds.

First, the immediate and pressing need for some authority to be exercised over the unruly Pākehā who were arriving in increasing numbers, particularly in the north.  Second, the power and authority of the Rangatira to engage in treaty-making with the Chief of another sovereign people.  Third, the practical belief that, just as Iwi and Hapū were free to exercise their own sovereignty, so too should the Pākehā tribe be free to do the same. 

That remarkable offer is a reflection of an overarching philosophy that may be called the whakapapa ethic. That is, the expectancy that all the different people living here will manage our own affairs in a way that is consistent with fostering the good relationships essential to any whakapapa. 

When it comes to political entities like the Crown and Iwi or Hapū who already have a treaty, Tangata Whenua view the whakapapa ethic as the underpinning philosophy of any constitutional relationship.  We also view several core values that must be incorporated in any constitution. 

The first is the value of tikanga – the core ideals or the “ought to be” of living in Aotearoa.  Second is the value of community – fair representation and good relationships between all people.  Third is the value of belonging – fostering a sense of belonging for everyone in the country.  Fourth is the value of place – upholding relationships with, and the protection of, Papātūānuku.

Fifth is the value of balance – ensuring respect for the authority of rangatiratanga and kāwanatanga within their various spheres of influence.  Sixth is the value of conciliation – providing an underlying jurisdictional means of resolution.  And seventh is the value of structure – establishing structural conventions that promote basic democratic ideals.

Although the Crown tries to either deny its ongoing treaty breaches, or dismiss them on the ground that they are sovereign over us and some of our claims are settled, we simply note that their view remains at odds with our own; moving on.  

Tangata Whenua don’t need Crown recognition of our sovereignty, we require its protection of all our human rights.  To that end, constitutional transformation is a legitimate outcome.