June 2013 Māori Law Review

Māori constitutionality (and the Treaty of Waitangi)

Māmari Stephens' paper to the Māori Law Review symposium on the Treaty of Waitangi and the constitution.

12 June 2013

Thirteen years ago during the ‘Building The Constitution’ conference in Wellington Professor Alex Frame advised participants against following what he described as ‘the architectural metaphor’ (in C James (ed) Building The Constitution (Institute of Policy Studies, Wellington, 2000) 431). Rather than build the (impossible) perfect edifice for the New Zealand constitution, he suggested that we ought to engage in a scholarly process of ‘loving excavation’ to determine what the critical values and institutions of our society are to adapt and use for our present and future needs.

Such an approach is not an easy one, but has much to recommend it, because it lets us look back over our constitutional history to determine where we have come from as a nation. However, this ‘loving excavation’ should not treat examples of value statements as firm evidence for what values have actually been practiced in New Zealand constitutionalism. Rather, this excavation must take account of actual constitutional practices. Such practices reveal more about constitutional values than mere statements of values ever can. Nor can a full exploration of constitutional institutions (including the relevant laws) tell the full story.

Any such excavation must take into account the development of Māori constitutionality; and in particular, Māori constitutional practice. In my view there are three important matters to consider in setting the frame of reference for such an inquiry. Firstly, any such inquiry must not be restricted only to the role of the Treaty of Waitangi in Māori constitutional development. The Treaty discourse is critically important, but has, arguably, narrowed the view of Māori as a constitutional people; presuming that Māori constitutionality only began with the Treaty, and now may only be viewed through a Treaty lens.

Secondly, general constitutional discourse often focuses on the exercise and control of public power, whereas Māori constitutional thinking and practice are largely observable outside the establishment of New Zealand’s general constitutional institutions. Therefore in examining Māori constitutionalism a broader enquiry as to how Māori developed and practiced civic decision-making power across the course of New Zealand legal history is necessary.

Broader Māori attitudes to the exercise of civic decision-making power simply cannot be identified or understood merely by way of analysing the orthodox instruments of New Zealand’s current constitutional institutions and their impact on Māori. We cannot learn much about Māori attitudes to land ownership, after all, by examining the rules of the Māori Land Court. Rather than only examine the impact of orthodox institutions on Māori, one fruitful avenue for broader exploration is to look specifically at Māori engagement with those institutions as well as with Māori-specific processes, initiatives and institutions. Extensive evidence for all such engagement has been available in Māori language documentation available since the early 19th century. Much of this documentation has now been compiled in a digitally searchable form. 1

Thirdly, such an inquiry should not presume that Māori constitutionality is automatically synonymous with notions such as self determination, autonomy, nationhood and modern uses of the term ‘rangatiratanga’ (often used as a handy label for the first two concepts.) The way in which these terms are used and applied may (ironically) obscure an investigation of actual Māori constitutional practices, locking such an investigation into a conventional Western discourse somewhat closed to non-Western ideas of constitutionalism (see J Tully Strange Multiplicity: Constitutionalism in An Age of Diversity (Cambridge University Press 1995) at 35).

Bearing these three things in mind, and drawing on research conducted elsewhere, I consider that the development of Māori constitutionality has been characterised by the growth of civic collectivism; whereby Māori were able to act collectively for disinterested (supra-tribal) collective ends.  The seeds for this Māori civic collectivism were sown well before the middle of the 19th century. This  idea of a supra-tribal ‘Māori’ political identity did not develop immediately upon contact with Europeans, but arguably, by the late 1830s such a notion was becoming widespread. This newly emergent Māori political identity can be identified at the Māori demos; which both transcends and comprises traditional kin groups such as iwi and hapū (as those component peoples of the Māori demos continue to change, evolve, and remain) and cannot sufficiently be described as only a voluntary association, such as an urban iwi. Unlike the Māori ethnos the Māori demos has been able to utilise collective choice, and act collectively to collective ends, albeit not in a politically unified manner.

Māori civic collectivism became identifiable over the opening decades of the 19th century and featured:

  • An increased willingness for tribal groupings, even non-kin affiliated groups to cohere for specific purposes;
  • An acceptance among Māori of the idea of a Māori supra-tribal identity;
  • Decision-making carried out for many Māori not only members of the immediate hapū, or close hapū of the decision-makers.

Māori social and political organisation had changed in the early decades of the century so that iwi, while still not the primary political unit, could cohere, when required to achieve specific purposes. 2 This evolution, married with the growing sense of a broad Māori identity as distinct and separate from ‘Pākehā’, proved fertile ground for the development of the notion that hapū and iwi could have interests in common, and that it could be possible to be responsible for making ‘good’ decisions for ‘Māori’ rather than just for one’s own immediate or closely related hapū. The rangatira who signed the Declaration of Independence in 1835 and particularly the Treaty of Waitangi in 1840 undoubtedly understood that the documents they signed were intended to have effect on other Māori individuals and collectives beyond any of their own immediate hapū, although the effects on their own hapū were their primary considerations. Haami Piripi has described the signing of the Treaty as the “earliest evidence of commitment to a public good in New Zealand.” 3

The growth of civic collectivism found its expression later in the 19th century and beyond; in many Māori political movements such as the Repudiation movement, the Kotahitanga movement and the National Māori Congress, the Māori War Effort Organisation of the 1940s, the development of the National Māori Council, the Māori Women’s Welfare league, Te Reo Māori Society, and many others, as well as the growth of modern broader-based political parties such as Mana Motuhake, the Mana and Māori Parties.

Māori political and cultural history has, to a large degree, been formed by a constant tension between civic and tribal modes of collectivism. Indeed modern Treaty of Waitangi discourse has also been influenced by this tension, as evidenced by commentary on the impact and importance of Article Two guarantees in conjunction with debates on the nature and extent of Article Three citizenship rights. While commentators such as Rata consider the more modern forms of ‘neotribalism’ to be a force destructive of Māori democratic participation and progress, 4 other commentators see no fatal incompatibility between old or new forms of tribalism and the ongoing development of a broader Māori civic collectivism. 5

The importance of civic collectivism to Māori political and cultural history provides some guidance for any review New Zealand’s constitutional arrangements and for Māori engaged in current constitutional practices. Firstly civic decisionmaking power ought to be exercised by Māori as a means of meeting collective obligation for civic (rather than only hapū or iwi) ends. In other words this power ought to be deliberately carried out in the exercise of civic collectivism for the good of Māori beyond close kin groups, potentially for the benefit of many or even all Māori. Secondly, civic decisionmaking ought also be carried out in such a way that provides for substantive collective participation and public input. If Māori participation cannot be provided for by way of gatherings or other methods of face-to-face participation, other mechanisms for substantive and direct Māori public input should be found. Arguably these things already happen; but the articulation of the practice of civic collectivism as being of constitutional importance to Māori may extend discourse beyond merely identifying appropriate statements of values to be included within such discourse.

What then, is the place of the Treaty of Waitangi within a discourse informed by the fundamental importance of Māori civic collectivism? Perhaps to some degree the place of the Treaty within that discourse depends on whether the Treaty is seen primarily as an institution or tool or subject of legal constitutionalism, or political constitutionalism.

If the former view dominates, then the constitutional discourse may envisage a limited place for the Treaty within it. Such discourse will necessarily focus on the principles of the Treaty, as determined by the courts and the Waitangi Tribunal. The discourse will also focus on matters pertaining to the partial or complete incorporation, even entrenchment of the Treaty within New Zealand law. The discourse will also focus on whether the Treaty is to be treated as part of a written constitution, or the foundation thereof. The place of Māori civic constitutionalism is likely to be considered in more of a formal light; as an attempt to counter the perceived uncertainty generated by the imprecise nature of the Treaty document itself. Treaty partnership as a framework to avoid such uncertainty will remain influential, and discussion of constitutional mechanisms to facilitate Māori civic constitutionalism might be more apt to concentrate on the form of such mechanism, rather than on the substance of the engagement.

On the other hand if the Treaty of Waitangi is viewed primarily as a matter of political constitutionalism then Māori civic collectivism might be exercised slightly differently. Political constitutionalism functions in everyday life over and above legal tools and institutions; outside also of treaties. As identified by Mark Hickford political constitutionalism represents a flexible way of framing the distribution of political and legal authority within a polity (polis) as well as a culture and ways of resolving disgreements about what is to be done.  These disagreements may be addressed through political or juridical contests or both. 6 The most enduring and salient feature of political constitutionalism in colonial NZ, according to Hickford, was Māori insistence on treating any agreement with the Crown as never final, but only as ‘punctuated moments in conversations without end’ (2012: 9). From the perspective of political constitutionalism the Treaty of Waitangi generates a kind of positive uncertainty. In the modern context, therefore, the Waitangi Tribunal has been extraordinarily important as a forum for that endless conversation between Crown and Māori hapū and iwi. In the Forum of political constitutionalism every negotiation, every settlement is constitutionally important, despite the legal status of each agreement. Contestability is critically important to maintaining the ongoing conversation where no end point is ever really reached. The exercise of Māori civic constitutionalism in such a context may be less concerned with legal status and formal mechanisms, and more concerned with pragmatic considerations directed at ensuring channels of communication remain open. The Treaty of Waitangi is one conduit for such communication, but need not be considered the only framework within which working relationships are forged and communication takes place.

Of course, it is clear that both forms of constitutionalism co-exist and are identifiable within modern Māori political discourse. However, given Māori political history it might well be possible to argue that Māori civic collectivism has already found its primary outlet in political rather than legal constitutionalism. If that is the case, then we are left with some questions. How best, for example, do we negotiate this valuable constitutional contestability in the post settlement era? How ought our constitution enable/facilitate the development and evolution of the  modern Māori demos? How do we retain Māori engagement and necessary flexibility facilitated by political constitutionalism whilst accessing the certainty and protections of legal constitutionalism? Whatever the results of the current constitutional review, such questions are worth exploring.

Notes:

  1. The Legal Māori Corpus comprises a large body of Māori language texts from between 1828 and 2009 designed and compiled to provide evidence of the use of Māori terms for Western legal concepts. Further details about the Legal Māori Corpus are also available at http://www.victoria.ac.nz/law/research/research-projects/legal-maori/corpus.
  2. See A Ballara Taua “Musket Wars”, “Land Wars”, Or Tikanga? Warfare in Māori Society in The Early 19th Century (Penguin, Auckland, 2003) at 69-70.
  3. In V Tawhai and K Gray-Sharp (eds) Always Speaking’ – The Treaty of Waitangi and Public Policy (Huia Publishers, Wellington 2011) 229-244).
  4. E Rata ‘Encircling The Commons: Neotribal Capitalism in New Zealand Since 2000’ Anthropological Theory 2011 11: 327-353, 337ff ).
  5. See V O’Malley ‘Reinventing Tribal Mechanisms of Governance: The Emergence of Maori Rūnanga and Komiti in New Zealand Before 1900’ Ethnohistory Winter 2009 56(1): 69-89, at 89).
  6. M Hickford Lords of the Land: Indigenous Property Rights and the Jurisprudence of Empire (2012) 3.