Weeping Waters E-Book

• Herausgeber: Huia Publishers
• Kategorie: Geisteswissenschaft
• Sprache: Englisch
• Veröffentlichungsjahr: 2017

Beschreibung

Weeping Waters is a must read for anyone who wants to be informed about the current debate regarding the Treaty of Waitangi and a constitution for Aotearoa New Zealand. The book features essays from eighteen well-known and respected Maori figures including Professor Margaret Mutu, Bishop Muru Walters, Judge Caren Fox and lawyer Moana Jackson. This is the first book in recent years to offer a Māori opinion on the subject of constitutional change. It shows how Māori views have been ignored by successive governments and the courts and how Māori have attempted to address constitutional issues in the past. The book also provides suggestions for a pathway forward if the Treaty of Waitangi is to be fully acknowledged as the foundation for a constitution for Aotearoa New Zealand.

Leseprobe

First published in 2010 by Huia Publishers

39 Pipitea Street, PO Box 17–335

Wellington, Aotearoa New Zealand

www.huia.co.nz

ISBN 978-1-86969-404-3 (print)

ISBN 978-1-77550-338-5 (EPUB)

ISBN 978-1-77550-339-2 (Kindle)

Copyright © the authors 2010

Cover image: Clayton Tume

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, including photocopying, recording or otherwise, without prior permission of the publisher.

National Library of New Zealand Cataloguing-in-Publication Data

Weeping waters : the Treaty of Waitangi and constitutional change/edited by Malcolm Mulholland and Veronica Tawhai.

Includes bibliographical references and index.

ISBN 978-1-869694-04-3

1. Treaty of Waitangi (1840) 2. Constitutional law—New Zealand.

[1. Tiriti o Waitangi. reo 2. Ture. reo] I. Mulholland, Malcolm, 1976- II. Tawhai, Veronica M. H.

342.93—dc 22

Published with the support of Ngā Pae o te Māramatanga

Ebook conversion 2017 by meBooks

Contents

Front Cover

Title Page

Copyright

Introduction

Part One: Evolution

1 Constitutional Intentions: The Treaty of Waitangi Texts

Professor Margaret Mutu

2 Change, Past and Present

Judge Caren Fox

3 The Pacific Way

Professor Arohia Durie

4 Legislation and the Legislature

Tama W Potaka

5 Judicial Creativity

Linda Te Aho

6 The Waitangi Tribunal

Jacinta Ruru

Part Two: Identities

7 A Ngāti Porou Perspective

Dr Apirana Mahuika

8 Kīngitanga

Tom Roa

9 Kotahitanga

Basil Keane

10 Urban Māori

Tania Rangiheuea

11 Māori Political Parties

Kaapua Smith

12 The Anglican Church

Bishop Muru Walters

Part Three: Developments

13 Symbols of Nationhood

Malcolm Mulholland

14 Minority Indigenous Representation

Associate Professor Ann Sullivan

15 Local Government Representation

Dr Janine Hayward

16 Citizenship and Education

Veronica Tawhai

17 A Kaupapa-based Constitution

Hohaia Collier

18 Constitutional Transformation

An Interview with Moana Jackson

Contributors

Bibliography

Index

Back Cover

E aku nui, e aku rahi, tēnā tātou katoa. Tēnā tātou i roto i ngā tini āhuatanga e pā mai nei ki a tātou. Tēnā hoki tātou i ō tātou mate – rātou i tuku mai te tino rangtiratanga hei oranga mō ō rātou uri, mō tātou i ēnei rā, i runga i te mata o ō tātou whenua i roto i tēnei ao hurihuri. Nō reira, tukuna rātou kia okioki, rātou ki a rātou, tātou ki a tātou. Ka tika mā tātou e manaaki aua kākano kua ruia hei tutukinga mā ā tātou tamariki mokopuna.

Nō reira, ki a koutou i takoha mai ki te pukapuka nei, ngā kupu kōrero, ngā akoranga nui, ngā whakaaro purapura hei whaitanga mā te hunga e matekai nei ki tō tātou rangatiratanga, nei rā te mihi.

E tātou, kia ū, kia māia!

Introduction

‘It seems to me that there is nothing particularly broken about the way our arrangements work at present, but they are quaint.’1

Prime Minister Helen Clark,

‘Building the Constitution’ Conference, 2000

If there is one theme to clearly emerge from this collection of chapters, it is that all arrangements that form any sense of a constitution for Aotearoa New Zealand do not meet Māori expectations that stem from the Treaty of Waitangi. Former Prime Minister Helen Clark is wrong in her assumption that the foundation of Aotearoa New Zealand is ‘solid’; in fact for Māori, the Treaty of Waitangi has been severely neglected as the cornerstone of a constitution for this country.

The title of this book is one translation of Waitangi: ‘tangi’ being ‘to weep’, ‘wai’ being ‘water’. It seems somewhat prophetic that the founding document of this country should have been first signed at a place that means ‘weeping waters’. The 6th of February 1840 was to mark a downward spiral for Māori, a loss of political autonomy that would result in the tangata whenua being culturally, socially and economically bereft in their own lands.

Yet all is not lost. The Treaty of Waitangi provides a basis for moving forward as a nation; it is as relevant today as it was 170 years ago. For many contributors to this book, the Treaty is about the distribution of power between the two signatories. Despite the erosion of Māori authority over their own affairs and a changing political landscape that may lead some towards the proposition that things have never been better for Māori, a revolution constitutionally is always possible. A revolution is required, to give justice to our founding fathers who put their name in ink on the founding document of this country.

The motivation for publishing this book comes from two sources: firstly, the need for a Māori opinion to be articulated and distributed among those who are interested. In recent years, there have been several books on the subject penned by Pākehā authors. While Pākehā opinion is important in terms of the Treaty, equally as important is what the tangata whenua think about the Treaty. Secondly, this year, 2010, marks 170 years since the signing of the Treaty, and is a watershed moment in time to revisit constitutional issues and the place of the Treaty.

On reflection, small gains have been made over the past forty years regarding Māori development. Yet there is still a long path to travel should we as a country want to fully realise the potential of the Treaty.

The starting point in a discussion about what a new constitution for Aotearoa New Zealand might look like is to define what a constitution is. As Moana Jackson argues, as soon as the word ‘constitution’ is used, Māori instantly speak within the confines of a foreign concept. Jackson encourages Māori to think in terms of what they know. Thus, perhaps the closest concept Māori have regarding a constitution might be kawa, or Māori law. This is a useful starting point, as Māori are aware of kawa for the marae that dot the landscape. How might those rules and values be extended within and applied to our society? This is where the discussion should begin for Māori.

There is no one written constitution for Aotearoa New Zealand. It is accepted that there is a collection of documents and conventions that form the constitution that governs the nation. Documents include the Treaty of Waitangi, various statutes with constitutional significance, such the Constitution Act 1986 and the Electoral Act 1993, and the decisions of the courts. Conventions include the prerogative powers of the Queen and rules that dictate how institutions of government work. The constitution that Aotearoa New Zealand has inherited originates from ‘Mother Britain’, supposedly from Māori agreeing to allow non-Māori onto their lands under the Treaty of Waitangi. The Queen or King of England reigns supreme as the Aotearoa New Zealand head of state. The Monarchy is represented within Aotearoa New Zealand by the Governor General.

At present, the focus of constitutional change appears to be for Aotearoa New Zealand to become a republic. Should this occur, the Queen would be abandoned as the head of state, thus making the position of Governor General redundant. The wider debate surrounding the place of the Treaty of Waitangi, should this country no longer be a member of the Commonwealth, would then focus on what that would mean in terms of the relationship between the Crown and Māori. The Monarchy has had very little to do with governance in Aotearoa New Zealand. If anything, their most lasting legacy was to delegate authority to the British Parliament, who, in turn, delegated their authority to the current New Zealand Government.

If we accept this as being the case, and one would assume that we do, given the role that successive governments have played in apologising to Māori regarding Treaty claims, then it can be argued that the Treaty partners are Māori and the New Zealand Government. This concept forms a starting point for the discussions contained within the individual chapters of this book.

Each chapter within this book is placed under one of three themes, as follows.

Part One: Evolution begins with a fresh look at the Treaty of Waitangi text. It then looks at government institutions, our Pacific neighbours and historical Māori responses to the evolution of a constitutional framework for Aotearoa New Zealand.

Part Two: Identities investigates the position of Māori and organisations they are associated with in terms of the debate surrounding a constitution based on the Treaty of Waitangi.

Part Three: Developments looks at issues that require attention should Aotearoa New Zealand formally adopt the Treaty of Waitangi as its constitution.

In her chapter in Part One, Professor Margaret Mutu provides a fresh analysis of the Treaty of Waitangi text, updating the interpretation offered by Sir Hugh Kawharu. Mutu contextualises the environment in which the Treaty was signed and concludes that the British Resident deliberately wrote the English version as a treaty of cession of sovereignty. What the Treaty did signify was that the British Crown and rangatira intended to have a peaceful relationship; it was intended to establish the conditions under which Pākehā could settle in Aotearoa New Zealand. The theme of Māori not having ceded sovereignty is strong throughout all the chapters of this book.

Judge Caren Fox looks at the development of Māori movements and their attempts at asserting autonomy, and arguments regarding constitutional change. Her chapter brings the reader up to date with the most recent attempts for Māori to be recognised under the Treaty of Waitangi, identifying opportunities for the Treaty partners to have a conversation about constitutional arrangements, and raising some poignant questions that will require answering within such an exchange. The need for recognition of Māori autonomy under the Treaty is yet another thesis that lends itself to many of these chapters.

Constitution-making in the Pacific is discussed in the chapter penned by Professor Arohia Durie. Given our country’s close proximity to our Pacific neighbours, much can be learned from their experiences. Within the Pacific community notions of democracy are drawn from Indigenous contexts, and Pacific constitutions are defined by values such as interdependence, reciprocity and mutuality that underpin the overarching concept of guardianship. Several chapters speak of common values as being vitally important to underpin any constitution mooted for Aotearoa New Zealand.

The Treaty in legislation and the legislature has been dominated by three distinct periods, which Tama Potaka labels ‘Lost at sea’ (1840–1975), ‘The tide turns’ (1975–1999) and ‘Uncharted waters’ (1999–2010). Potaka provides a description of how the Treaty has been recognised, or not, through legislation. He then looks at how Parliament could give improved meaning to the Treaty of Waitangi through a multi-cameral system, which would alter procedures to better reflect our bicultural past.

Given the absence of the Treaty from legislation over a 135-year period, Linda Te Aho charts the journey undertaken by the Treaty in the courts. Like the legislation, the judicial system has failed to acknowledge (and has in fact denied) Treaty rights for the majority of this country’s history. Te Aho argues that the now famed ‘Lands’ (or ‘SOE’) case of 1987 was an exercise of blatant judicial creativity, as opposed to judicial activism. The recent debacle involving the foreshore and seabed, in which a decision of the court was overturned by the Labour Government, is highlighted as an unfortunate step backwards, towards our colonial past.

The Waitangi Tribunal has provided the most jurisprudence in terms of the Treaty of Waitangi. It remains the most respected and prolific forum whereby Treaty grievances are heard, giving rise to debates and discussions involving the Treaty. Jacinta Ruru argues that the principles developed via the Tribunal could provide a valuable blueprint in seeking a way forward regarding constitutional change for Aotearoa New Zealand.

A perspective offered on behalf of Ngāti Porou begins the section that looks at identities. What might the view of iwi be towards a body that looks to join all iwi to represent Māori interests under a possible Treaty of Waitangi arrangement? Dr Apirana Mahuika, Chairman of Te Rūnanga O Ngāti Porou, warns against the disavowal of the mana of iwi and hapū, whereby individual hapū or iwi rights are supplanted by the needs of a larger pan-Māori organisation. The mechanisms by which internal leaders are appointed within Ngāti Porou are illustrated, with clear examples.

There are two specific chapters that look at Māori movements that have highlighted Treaty of Waitangi rights for Māori in the past: the Kīngitanga and Kotahitanga. Speaker of the Waikato-Tainui Te Kauhanganui (Tainui Parliament), Tom Roa, provides an insight into the purpose of the Parliament, as well as an historical overview of the Kīngitanga Movement. He highlights discussions that were held at the 150th celebration of the Kīngitanga regarding constitutional change, most notably concluding that their constitution is underpinned by tikanga, whereas written law is the overarching basis of the Aotearoa New Zealand Parliament. The Kīngitanga are very much looking forward to having a discussion with the Government about what constitutional change may mean in terms of the relationship they share with central Parliament.

Kotahitanga was a movement that sought to achieve several goals: firstly, it attempted to unite Māori politically under one umbrella; and secondly, it attempted to replicate the model of governance being practised by the government of the day, via a separate Māori Parliament, or Pāremata Māori. As Basil Keane notes, the fact that the movement was so short-lived ultimately boiled down to the non-recognition of the movement by the New Zealand Government. What it provides, however, is a successive model of a pan-Māori organisation established to give recognition to the rights of Article Two in the Treaty of Waitangi.

Urban Māori are a modern-day phenomenon within Māori and Aotearoa New Zealand society. Tania Rangiheuea provides an oversight of how Māori society has changed since the time of pre-European society. She then looks at the fight urban Māori authorities have endured to be acknowledged as rangatira under Article Two of the Treaty of Waitangi. Her chapter concludes by stating that urban Māori should be a part of any discussion or structure addressing constitutional change.

Kaapua Smith tracks the development of Māori political parties – those who have promoted tino rangatiratanga, or Māori autonomy, under both first past the post and mixed member proportional representation systems.

What becomes clear is that at the heart of every Māori political party is the desire to not only further Māori cultural, social and economic aspirations, but also to influence Aotearoa New Zealand at the highest level, motivated by what was promised to Māori under the Treaty of Waitangi: tino rangatiratanga.

Over the past two decades, the Anglican Church model has often been heralded as an example that could be replicated on a constitutional level to create a structure truly based on the Treaty of Waitangi, with a Tikanga Māori House and a Tikanga Pākehā House, and a Treaty House sitting above both. Bishop Muru Walters provides an insight into the workings of the Anglican Church under this model, as well as the history of discussions towards its implementation on a national scale.

Malcolm Mulholland begins the section on developments. He argues that our current symbols of nationhood are actually symbols of colonisation, including the national name, flag and anthem. He states that these symbols will require change based on conversations between the two Treaty signatories and offers a range of possibilities, including completely changing each symbol or amalgamating the old with the new.

Associate Professor Ann Sullivan’s chapter addresses Māori representation within the House of Representatives, which has long been a contentious issue. Some have argued that Māori do not receive enough recognition under the system of separate Māori seats, whereas others have said that the separate seats are an antiquated measure that should be abolished. Tension between democracy and the rights of a collective is often highlighted in debate about the most appropriate political system for Māori representation. Sullivan also tracks the change in the Aotearoa New Zealand political system from first past the post representation to mixed member proportional, and how Māori have fared within both.

Dr Janine Hayward looks at what the Treaty of Waitangi means for local government, including the discussion that has taken place regarding this issue within the context of local body reforms. As it stands, the issue requires clarification and an appropriate forum by which to have a meaningful discussion, as highlighted by the recent Auckland ‘super city’ plans. Hayward suggests that central government should lead the debate, and stipulates that all local communities should have Māori representation, rather than entrusting the mechanisms of governance to the whim of local bodies who make demographically based, rather than Treaty-based, decisions.

Citizenship education has gone amiss under successive governments, according to Veronica Tawhai. Her chapter explores the staggering fact that a tailored education package regarding the rights of citizens, including arguments surrounding the Treaty, is not offered to the public of Aotearoa New Zealand. In order to enable wider debate about the place of the Treaty, there needs to be broader understanding in the community. Popularly held views need to shift towards equality of outcomes, as opposed to equal opportunities: this extends to equal political rights for hapū and iwi.

A kaupapa-based constitution is argued for by Hohaia Collier. Collier’s proposal could operate on many different levels – from hapū governance through to a possible Māori Government. Underlying his suggestion is the recognition of kaupapa, or grounding principles, based on the Declaration of Independence and the Treaty of Waitangi.

The book concludes with an interview with Moana Jackson. Moana, without doubt, is the foremost expert on constitutional matters for Māori. His interview provides a parameter within which constitutional transformation for Māori could take place; namely, that Māori should not frame the discussion in terms of what has been inherited from the Westminister system, but rather in terms of what they already know of rules and regulations that govern Māori society – kawa. He contextualises the debate, reminding readers to operate outside of a colonised world and that a framework for constitutional transformation already exists, given to Māori by those tīpuna who signed the Declaration of Independence and the Treaty of Waitangi.

The ‘Relationship and Confidence and Supply Agreement’ between the National and Māori Parties signed in 2008 stated that a group would be established to look at constitutional issues in 2010, 170 years after the Treaty was signed. While this forum may not result in any short-term solutions regarding the place of the Treaty of Waitangi and the constitutional arrangement between Māori and the Crown, it is, at the very least, an acknowledgement by the National Government that they are prepared to enter into dialogue with the public regarding this extremely important matter. It is hoped that the discussions contained within this book will form a basis for debate. Tania Rangiheuea stresses that discussion around constitutional change should not be restricted to academics, the state sector and the Māori elite. Her warning is timely, and serves as a reminder that constitutional change affects the country as a whole.

May Weeping Waters educate and inform people who are interested in the constitutional future of Aotearoa New Zealand.

NOTE

1 Opening speech by Helen Clark, in C James (ed). Building the Constitution, Wellington: Institute of Policy Studies, 2000, p. 38.

PART ONE

EVOLUTION

CHAPTER 1

Constitutional Intentions: The Treaty of Waitangi Texts1

Professor Margaret Mutu

Introduction

For 170 years Māori have held fast to the Treaty of Waitangi, the sacred covenant between Māori and the Queen of England, signed by the rangatira (tribal leaders) and the Queen’s representative at Waitangi on 6 February 1840. It has always been clear to Māori that the Treaty recorded the conditions under which Pākehā (non-Māori of European descent) could remain in this country they called New Zealand. By signing it, the Queen had finally acceded to the wishes of the rangatira of Te Whakaminenga o ngā Hapū, those rangatira who her father the King had acknowledged held sovereignty over their territories in this country. The rangatira had asked the King of England to take control of his hitherto lawless subjects residing in their territories, prevent their lawlessness, teach them to respect and uphold the mana and the rangatiratanga (paramount power and authority) of the hapū whose lands they were living on, and allow Māori and Pākehā to live in peace. That Pākehā understood the Treaty very differently was something that did concern the rangatira at first, but they were persuaded by the assurances of the missionaries that the Treaty they signed meant what it said. Their descendants to this day believe that the Treaty provides the only constitutional basis on which Pākehā continue to live in New Zealand, despite over a century and a half of brutal oppression at the hands of those Pākehā subjects of the Queen of England. A close examination of the texts of the Treaty explains why that belief is so strongly held.

This chapter provides an analysis of the Māori and English texts of the Treaty of Waitangi. Before examining the texts in detail, it provides a brief background to the nature of treaties entered into by the British with Indigenous peoples and the reason and context for Māori wishing to enter into an international agreement with the Queen of England. It also provides an overview of the translations of the Māori text that have been published since 1840, including the work undertaken by Sir Hugh Kawharu. The chapter concludes by summarising what was intended by the two parties upon signing the Treaty as New Zealand’s founding document and the role the Treaty therefore plays as the foundation for the development of a constitution for this country.

British treaties with Indigenous peoples

Treaties entered into between the British and Indigenous peoples usually had the same format as those between European nations.2 They record agreements on specific issues reached between two sovereign nations. The parties to the treaty are clearly identified, with the rights and obligations of both spelt out.3 The matters agreed to are set out in the treaty, and can cover a wide range of matters of international significance, including peace and friendship, agreeing to a truce, terms of peaceful co-existence, regulation of trade, cession of sovereignty over land and water, abolition of slavery, religious freedom, shipwreck and salvage rights, cession of mineral rights, legal jurisdiction and abolition of human sacrifices.4 Previous studies of treaties between the British and Indigenous peoples indicate that treaties were generally agreed after explaining and debating the terms in the language of the Indigenous peoples.5 This was certainly the case with the Treaty of Waitangi.

By the time the English started diplomatic negotiations with Māori concerning the Treaty of Waitangi, they had had experience of negotiating international treaties with Indigenous nations for well over a century. In North America, the Indian subcontinent and Africa, as in Aotearoa, the English were forced to deal with the Indigenous nations diplomatically rather than trying to take their territories by force. The sparse European populations residing in or visiting those territories were no match for the military force of Indigenous communities. In Aotearoa in particular, in the late eighteenth and early to mid-nineteenth centuries at least, Europeans required the protection of Māori for their own safety and survival.