October 2012 Māori Law Review

Book review – ‘Always Speaking’: The Treaty of Waitangi and Public Policy

Overview

‘Always Speaking’: The Treaty of Waitangi and Public Policy

Veronica MH Tawhai and Katarina Gray-Sharp (eds)

Huia Publishers, Wellington, 2011 (344 pages)

Reviewed by Dr Matthew S R Palmer, Barrister, Thorndon Chambers, Wellington

Discussion

There are many ways of approaching public policy and the Treaty of Waitangi.  The value of this book is that its seventeen chapters, by different contributors, each adopt slightly different approaches, but together illustrate some common themes.  That is particularly valuable because, bar one, the contributors are Maori and we need more insight into the nature of Maori approaches to public policy.

More than ten years ago I suggested that the Treaty of Waitangi needs to be considered in relation to the detail of policy and that doing so required willingness on the part of policy-makers to do a lot of work.[1]

In reviewing this volume I was interested to see how the contributors approach their topics.  What do their approaches suggest about the meaning of the Treaty of Waitangi?  How does the policy analysis they assess, or undertake, measure up against the Treaty?  Is there a common approach and are there significant differences in Maori approaches to the Treaty and public policy compared to Pakeha approaches?

General Comments

The production values of this book are high – the cover design, font and font size, bibliography, footnotes and biographical notes of the contributors are all clear, easily accessed and attractively presented while consistent with an academic volume.

A variety of topics are treated in the book though they tend to cluster in several areas:

  • social and economic policy issues (education, health, youth, children, maternity services, whanau development, housing, economic development and values);
  • cultural issues (cultural heritage, te reo, broadcasting, Maori land); and
  • governance & legal issues (local government, electoral system, public sector, Rangatahi courts).

The contributions are generally of a high quality – the topics are usually treated with a depth of perception and research that suggests the contributor knows their area.  As contributions that made me think again about my views of particular policy areas, I would single out:

  • Maria Bargh on international relations and trade;
  • Huhana Smith on cultural and heritage landscapes;
  • Christine Kenny on Maori maternity services;
  • Kathie Irwin and Kim Workman on whanau development; and
  • Judge Heemi Taumaunu on Rangatahi courts.

Patterns

But, for me, the most interesting insights available from Always Speaking are the patterns that can be discerned across the individual contributions.  I identify two such patterns that each bear a different relationship to the discipline of policy analysis:

  • First, I discern in these contributions a tendency to favour problem identification of the past over the option identification for the future that is an equally important part of policy analysis;
  • Second, I also identify an emphasis on participation in the implementation of policy that is usually insufficiently recognised by mainstream policy analysis.

The Importance of Future Options

Sir Mason Durie, in the Foreword, says:

Essentially the Treaty was about designing a future for Aotearoa New Zealand where Maori world views, rights, and leadership would be reflected in the day to day life of the democratic nation and the ways in which public policies would be determined.

And public policy is inherently forward looking – it seeks to identify problems and objectives, options for addressing them, and paths forward.  It is interesting, then, that most of the contributions to this book are devoted to reviewing or critiquing past or present policies rather than developing new policies.

This is entirely understandable at one level.  Identifying the policy problem is a key part of policy analysis which should not be taken lightly – if the wrong problem is identified the rest of the analysis is irrelevant.  Perhaps it is also not coincidental that te ao Maori respects and recognises the importance of the past for understanding the present and future.

Many contributions to Always Speaking are very good at identifying problems and reviewing and critiquing past approaches in the relevant area of policy:

  • Leonie Pihama and Carl Mike provide a review of Maori broadcasting and the evolution of Maori TV within a sophisticated perspective of the interrelationships between culture, communication and identity;
  • Janine Hayward identifies the Crown’s policy of devolving kawanatanga but not devolving the obligation to observe the Treaty;
  • Colin Knox provides a useful historical account of Maori land retention and use and its relationship to a decline of culture and tikanga.

But at another level, the review of the past and identification of problems should be seen as a necessary, but only the first, step in providing adequate policy analysis of these topics.  Having identified a policy problem, designing a future for Aotearoa New Zealand requires identification of all possible options for achieving the relevant policy objective – and rigorous analysis of those options in order to recommend what should be done.

Most of the contributions in Always Speaking do have a forward-looking section on what should be done.  But, too often, these passages are a smaller part of the contribution towards its end and do not provide the sort of rigorous analysis of options leading to an inevitable recommendation that policy makers find compelling.

I suggest that the next steps for these contributors (perhaps a second follow up volume?) are these next phases of full policy analysis that yields a compelling recommendation in relation to each topic.

The Importance of Participation in Implementation

There is a tendency for policy analysis to be abstract and theoretical. This seems likely to be inherent to the disciplinary methodology of policy analysis which necessarily abstracts from individual cases and events to rise to a level of principle that can be applied across different cases and events.

Abstraction can be useful – it allows the essential aspects of issues to be considered and factual context which does not really affect the relevant principle to be ignored.  However it can also lead policy analysts to undervalue the importance of context and, even, to miss factors which are actually essential.  It can also lead policy analysts to think their job is finished once a policy is formulated and adopted – forgetting that a policy is only as valuable as its implementation.

This is not a tendency into which the contributors to this volume lapse.   Consistent and significant attention is paid in this volume to the importance of implementation.  More particularly, this often takes the form of a concern at the lack of, and importance of, Maori participation in implementation.

So:

  • Taiarahia Black’s policy prescription for te reo emphasises the importance of the use of te reo in practice, whether on TV or whanau reo conversations;
  • Huia Tomlins-Jahnke and Krystal Warren graphically demonstrate the importance of Maori implementation of education initiatives in relation to kohanga reo, kura kaupapa, and wananga;
  • Maria Bargh calls for Maori participation in the formulation of the Crown’s foreign policy – a call that is, perhaps, disturbing for Pakeha only because their own participation also currently feels limited;
  • Christine Kenney links the low number of Maori midwives with a monocultural approach to maternity care that must disadvantage Maori and calls for the application of a partnership model that would involve Maori participation in the sector;
  • Kathie Irwin and Kim Workman explicitly invoke, in their framework for whanau development for the Families Commission, Mason Durie’s identification of three critical concepts from the Treaty for social policy: partnership, protection and participation;
  • Judge Heemi Taumaunu’s account of the innovative Rangatahi Courts trials is a compelling, if understated, demonstration of the power of meaningful Maori participation in the justice system.

Conclusion

So overall, I liked this edited collection and congratulate the editors for producing a quality contribution to the literature concerning public policy and the Treaty of Waitangi.

I also suggest that Always Speaking illustrates that:

  • those concerned with policy issues relating to the Treaty of Waitangi can learn from the discipline of policy analysis; and
  • policy analysts, with an inbuilt tendency to be relatively unconcerned about the implementation of policies, can learn from the approaches to participation in policy implementation in this book.

[1] Matthew Palmer, “The Treaty of Waitangi in Legislation” [2001] NZLJ 207 at 210.

Author: Matthew Palmer

Dr Matthew S R Palmer is a Barrister at Thorndon Chambers specialising in Public Law. He has previously held positions as: Deputy Solicitor-General; Dean of Law and Director of the NZ Centre for Public Law at Victoria University; and Deputy Secretary for Justice (Public Law). His 2008 book, The Treaty of Waitangi in New Zealand's Law and Constitution won the Legal Research Foundation's Northey Prize for the best legal book of that year.