PEOPLE POWER

¹Crucial to any notion of constitutional balance between Māori and the Crown is the idea that within their own spheres of influence, each has jurisdictional choice to exercise their rangatiratanga and kāwanatanga in different ways, subject only to their respective tikanga and laws and the need to honour the authority of the other.  

 

The right to be self-determining has always meant that people are free to chart their destiny in their own way and it has always taken different forms in different cultures.  The very difference in form is also the very ideal of democracy. 

 

The Westminster form of democracy for example is as culture-bound as was the original Greek “demos” from which it traces its history. In Ancient Greece the rules about who could participate in political decisionmaking were distinctively shaped by the culture of the time and never allowed for the inclusion of women or the lower classes known as “the mob,” or those non-Athenians who were regarded as “natural born slaves”. 

 

For Māori, the site of power (arikitanga or rangatiratanga) and the concept of power (mana) that facilitate how we make decisions and exercise our power, are different to those in Athens and Westminster because they grew from our culture and our understanding of our relationships with each other and with Papatūānuku. But the legitimacy of our power, like theirs, lies in its cultural distinctiveness. 

In a Tiriti-based constitution that kind of difference would allow Māori and the Crown to make law within their own spheres by following their own processes.  

 

“The idea of doing things our way is crucial otherwise it’s not mana we’re talking about…it will probably lead to arguments about what our way is but that’s part of who we are…we always do things differently anyway…it’s what the kawa on the marae is all about…it’s what being Ngāti Porou or Apanui is all about…it’s not new”.   

  

“I know that in the Māori Parliament they decided to have voting which was not our way but they also worked on a consensus and used other kawa that was quite different…I don’t see why that can’t be done now if it’s tika and I don’t see why we couldn’t figure out how we’d work together either”.  

  

“If we can agree that we will do things differently to the Crown…that’s all we’d have to know when we’re in our whare or whatever and the Crown’s in theirs…trust each other to do what’s right…and then meet regularly with the Crown to negotiate what we need to do together”.   

When John Rangihau described rangatiratanga as being “people-bestowed” he actually accentuated something very democratic – that legitimate power is always from and for the people, and that it is for the people to determine how and when it will be exercised.  

                                                     

^{1 1} Thirty-ninth edited extract from pp. 87 – 88 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of

Matike Mai o Aotearoa

SHIFTING THE IMBALANCES

Whenever and wherever we find one group of people denying the humans rights of another group, we find an imbalance.  In order to shift that imbalance we have to bring about external change.  And to achieve external change there must be an internal transformation.  When transformation happens, change becomes inevitable.

Kate Sheppard knew it when she published Ten Reasons Why The Women of N.Z. Should Vote (1888). Ngā Tamatoa knew it when they petitioned for Māori to be taught in schools (1972).  We know today it when we claim our right to self-determination.

[1]“We’ve done a good job in shifting lots of things since the Ngā Tamatoa days, but there’s still a long way to go…there’s still no real entrenchment of a constitutional understanding between us and Pākehā that recognises our right to be the decisionmakers on our own issues…that’s what we meant when we used to say the Treaty was a fraud because it’s been used against us by the Crown until it makes all the decisions for everyone”.

A constitution which enshrines a more balanced and nuanced understanding of rangatiratanga and kāwanatanga will be a long overdue honouring of the political and diplomatic conventions which made treating possible in 1840. 

“We would never have gone into a treaty thinking that the Crown was better or more powerful...hell there were hardly any Pākehā here… we knew it was different because Pākehā were different and what our people have been saying to them ever since is just accept the difference…go with the equalness”. 

“Every treaty is about reciprocity just like human rights are about recognising that people are equal and no person is better or more entitled than another…What we have to do is get to a point where a constitution can say that…this is what you do, this is what we do, and you don’t make the final decisions just because you’ve been doing that for so long”.

"If tikanga and manaaki…and democracy is going to mean anything there has to be a way of having kāwanatanga and rangatiratanga in some kind of balance…we need to get away from the idea that rangatiratanga is just a resource management right or something that the Crown has delegated to Iwi…or a co-governance thing where the Crown nearly always ends up having the final say”.

“No-one has done this before which is what makes the treaty special…whatever we come up with will be one way of showing that different sovereignties can live together which is what the treaty was always about…and they can live together by respecting what they are each entitled to do”.

---

[1] Thirty-eighth edited extract from pp. 86 – 87 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

LOVE FOR THE LAND

[1]Whenever people spoke with the Matike Mai o Aotearoa Working Group they invariably began by naming their mountains and rivers and Iwi, as we always do. They linked themselves to Papatūānuku and in that simple poetic identification they also stressed the importance of the whenua and their relationship to it. Through their whakapapa they actually illustrated why the whenua value was so fundamental to this constitutional kōrero. 

 

“The most important value of all is love for the land…everything else depends on it. Unless we get the relationship with Papatūānuku back in balance and maybe have it in a constitution then there’ll be no other relationships at all…no politics, no economics, no anything”.

“It’s not a green or conservation issue or whether the Resource Management Act is any good or not …it’s about the much more basic relationship in whakapapa between ourselves and Papatūānuku, between the whenua we bury when we are born and the whenua that is our land…I can’t think of a value that’s any more basic than that”.

The kōrero about the value of the whenua also frequently included a discussion about economic policy. Many participants, including a number of rangatahi, were especially concerned about the effects on land retention and protection of the pervasive influence of neo-liberal ideologies and what they perceived as the shift from a market economy serving society to a society now serving the market.

“I think that Papatūānuku should be in the constitution for survival reasons if nothing else. There’s all the tikanga of course but if we don’t look after Papatūānuku there’ll be no tikanga left…a constitution by itself won’t do it but it would certainly help”.   

“Rangatiratanga was never just about money and I know for sure that kaitiakitanga wasn’t either – it was about looking after each other and the whenua…but with all this New Right stuff even the whenua gets talked about by some of our people like it’s just a resource…I’d like to see a constitution get back to rights and looking after Papatūānuku and maybe that would help get some economic balance as well”. 

People also indicated in their kōrero that the value of place was something which others were entitled to and which many Pākehā have developed over time. It does not make them tangata whenua as the term is defined by Māori through a discrete and unique whakapapa relationship and it does not make them indigenous as defined internationally. However it does give a special meaning to being tangata Tiriti and therefore belonging to this land.  The constitutional recognition of that shared value would reaffirm that fact.  

---

[1] Thirty-sixth edited extract from pp. 83 – 84 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

THE VALUE OF BELONGING

One of many positive aspects that both lead into and come out of the ongoing kōrero about constitutional transformation in Aotearoa, is the commitment of many Tangata Whenua and Tangata Tiriti to base our written constitution on mutually agreed values that will underpin and support good relationships between all people who live here. 

The report of Matike Mai o Aotearoa has synthesised their kōrero into seven key 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.  The Rangatahi Group that worked with Matike Mai also added six further values; the value of the wellbeing of Ranginui and Papātūānuku, the value of Mana Motuhake, the value of traditional knowledge, the value of kotahi aroha, the value of education, and the value of health and wellbeing. 

Last year I presented extracts from the Matike Mai report covering the values of tikanga and community.  This year I begin with this extract on the value of belonging.  [1]Although clearly linked to the value of community, the value of belonging is more focussed on how the inclusivity of the treaty relationship can foster the sense of belonging in this country for everybody living here.   

The kōrero of Tangata Whenua on this topic was marked by a generous spirit towards others, but it was also an expression of the fact that most of them, through knowing their whakapapa, were generally secure in their own identity and sense of belonging and wanted others to have the same security.  They also felt that Te Tiriti was an important extrinsic affirmation of what that meant and believed that our constitution could usefully begin by reaffirming the place of Tangata Whenua –

“A constitution should be about who we are, and having something about our whakapapa to this place would be a good way to do that…and something about us, and not Pākehā, deciding who’s a Māori would be good as well”.

By the same token they believed that, through Te Tiriti, our constitution could also reaffirm the place of Tangata Tiriti –

“When we were in Washington we went to see their Constitution and Declaration of Independence and there was this long line of Americans queueing up to see it…like it was sacred and really important… it seemed to tell them who they were and where they belonged…the treaty doesn’t do that for most Kiwis at the moment because it’s been caught up in all sorts of controversies, but if there was a kōrero in a constitution that talked about it and said we were Tangata Whenua it would help our people….and if it said something about Te Tiriti and Pākehā as well…that might help them feel they belong in the same way”.

---

[1] ^[1] Thirty-fourth edited extract from pp. 79 – 80 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

SPHERES OF INFLUENCE

[1]Since 2010, participants at Matike Mai o Aotearoa hui have consistently advocated for a Tiriti o Waitangi based constitution that protects and upholds the right of all peoples to fully participate in the political affairs of this country.

Because Te Tiriti was between the rangatiratanga in behalf of Tangata Whenua, and the kawanatanga in behalf of Tangata Tiriti, there is value in constitutionally enshrining these two different spheres of influence as well as a relational sphere between them.  Such an arrangement would protect the right of everyone to have an effective voice in governing this country.  

 

So who would qualify to participate or be represented in each sphere of influence?  And how might the often vexed question of identity be reconciled with any general statement about participation? Who decides who belongs in which sphere?

There is truth in the old adage that “the namer of names is the father of all things” and redefining who Māori are has been a constant form of colonising control. Indeed since 1840 there have been numerous different legislative definitions of Māori, many of them in statutes about land and the taking of land.

However the right to define oneself is an essential part of self-determination, so it is logical and right that each party to Te Tiriti will decide its own grounds for participation and representation in its own sphere.  They would naturally then also choose their own representation in any relational sphere. 

“Our whakapapa tells us who we are…what matters is how we live our whakapapa and where we put our effort…we then make a choice in this process where we want to stand”. 

“It’s not a complicated issue…it was colonisers that started saying there were only half Māori or quarter Māori and that was just to control us…a constitution would have to get rid of all that…it doesn’t mean giving up what else is in our whakapapa…my Nan’s from Australia…but I’m not a half anything”.

“However we define who we are…the main thing is that we find a robust way of making sure everyone has a say…to make sure we would always have our say through our own tikanga”.

“The change we are talking about is the next step past merely biculturalising the Crown to finding something that’s not assimilative or integrationist or a British clone transplanted here…something unique where we make political decisions here in a way that represents or conveys what being here means”. 

This emphasis on the value of good social relations in both treaty and constitutional terms indicates a genuine generosity of spirit. It is also a reminder that when constitutions set out the rules about how people should govern themselves, they are not just setting out a legal or political document, they are also establishing relationship guidelines between those people in their different spheres of influence.

---

[1] Thirty-third edited extract from pp. 78 – 79 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

TANGATA WHENUA AND TANGATA TIRITI

[1]Everyone who has taken part in the hui of Matike Mai o Aotearoa since 2010 are mindful of the recent increase in immigration.  And, even though some unfortunately share the common misapprehensions about Asian immigration in particular, the essential view that Te Tiriti o Waitangi applies to all people, and therefore has immigration connotations, remains the same. Where the immigrants come from or when they arrived is less important than the relationship with all new arrivals that the tūpuna hoped for in Te Tiriti.

"It seems to me that if we talk about values in a constitution we have to talk about our relationships with every immigrant whether they came here in 1850 or 2015…and if they came from China or South Africa they are part of the treaty…they might be here because of some Crown policy, but some might want to be part of us and that’s fine because the treaty is still with us”.

When I talk about the treaty relationship with other people I like using tangata whenua and tangata Tiriti because it puts everything in perspective about how this thing might work…it values everyone on a whakapapa or relationship kaupapa rather than just a Crown one”.

One of the difficulties in the whole treaty debate has been that it’s always seen as just a Māori problem as if it’s just about our rights.  But Te Tiriti gave everyone else the really basic right to be here…doesn’t matter when they arrived…there’s a treaty relationship for everyone”.

“I’m not that fussed about using the word biculturalism because it’s sometimes just a cooption of our tikanga…like dial-a-kaumātua or dial-a-pōwhiri or rolling out a wero for every old Pop Star who comes here…but where it does have some use is reinforcing the treaty relationship at a much more personal level with everyone who has come here to stay and is now Tangata Tiriti”.

“When we say ‘he aha te mea nui?’ we don’t just mean us or the Pākehā who’ve been here for generations. It’s everyone and that’s what Te Tiriti allows for…that we now have this multicultural place but it all began in the treaty and the relationship that’s meant to exist between us and the Crown”.

“It’s just tikanga to recognise the relationship with Tangata Tiriti even if they haven’t always recognised us…that’s a really important value but it needs the same manaaki that our people tried to show to the first Pākehā”. 

A people’s trust in a constitution, and their willingness to be part of it, always depends to some extent upon the mechanisms it has to ensure participation in a fair and equitable way for all of those whom it is designed to serve.  That is why the constitutional findings and recommendations of Matike Mai are now being presented to and discussed by ever-increasing numbers of Tangata Whenua and Tangata Tiriti. 

---

[1] Thirty-second edited extract from pp. 77 – 78 of He Whakaaro Here Whakaumu Mō Aotearoa – The Report of Matike Mai o Aotearoa

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.

---

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