tag:theconversation.com,2011:/fr/topics/waitangi-tribunal-26802/articlesWaitangi Tribunal – The Conversation2024-01-30T17:42:17Ztag:theconversation.com,2011:article/2202012024-01-30T17:42:17Z2024-01-30T17:42:17ZThe idea of ‘sovereignty’ is central to the Treaty debate – why is it so hard to define?<p>The coalition government’s approach to <a href="https://teara.govt.nz/en/te-tiriti-o-waitangi-the-treaty-of-waitangi/print">Te Tiriti o Waitangi</a> (Treaty of Waitangi) will inevitably set the scene for Waitangi Day next week, with the ACT Party’s <a href="https://www.act.org.nz/defining-the-treaty-principles">Treaty Principles Bill</a> already generating protest and <a href="https://www.stuff.co.nz/politics/350157533/three-headed-taniwha-government-enemy-maori-ratana-criticism-should-give-pm">ill will</a>. </p>
<p>But ACT’s initiative, even if ill-conceived, could still open up a widened debate that is long overdue.</p>
<p>The current Treaty “<a href="https://www.waitangitribunal.govt.nz/assets/Documents/Publications/WT-Principles-of-the-Treaty-of-Waitangi-as-expressed-by-the-Courts-and-the-Waitangi-Tribunal.pdf">principles</a>” were devised by the <a href="https://www.waitangitribunal.govt.nz/">Waitangi Tribunal</a> and the courts, and are based on interpretations of both English and Māori texts. ACT’s draft bill would rewrite the principles according to the English text only – or, at best, on a shallow reading of the Māori. </p>
<p>On the other far side of the debate, Māori “decolonialists” would simply abandon the principles, and advocate a return to their interpretation of the Māori text of Te Tiriti.</p>
<p>The decolonialists are correct on two key points: the Māori text is the original text and has the standing in international law; and the principles derived from both texts are problematic. </p>
<p>However, the decolonialists say Māori did not cede sovereignty in Te Tiriti, only the right for the Crown to govern non-Māori. They then revert back to a poorly defined Treaty principle in calling for an “equal partnership” that would constitutionally entrench a Māori parliament deep in the political process. </p>
<p>I argue against such a major constitutional change. If Māori did not explicitly cede sovereignty in 1840, neither did they fully retain it. Sovereignty is already being shared. </p>
<p>Because te Tiriti was between the Crown and <a href="https://teara.govt.nz/en/tribal-organisation/page-1">iwi and hapū</a>, demands for their greater self-determination can and are being addressed within our current constitution.</p>
<h2>Complete government forever</h2>
<p>Like ACT’s bill, the decolonial interpretation of Te Tiriti is both shallow and partial. It relies on a narrow legalistic interpretation of the concept of sovereignty, albeit one that is shared by <a href="https://www.crownlaw.govt.nz/">Crown Law</a> and much of the legal establishment. </p>
<p>The alleged lack of cession of sovereignty has been widely recognised by historians and legal experts for many years. Yet the late <a href="https://teara.govt.nz/en/biographies/6k2/kawharu-ian-hugh">Hugh Kawharu</a>’s authoritative translation of the key text of Te Tiriti says: </p>
<blockquote>
<p>The chiefs […] give absolutely to the Queen of England for ever the complete government over their land. </p>
</blockquote>
<p>To a commonsense reader, “complete government for ever” might seem to mean “sovereignty”. However, as Kawhuru pointed out, at the time Māori had no experience or cultural understanding of the concept.</p>
<p>Nonetheless, “complete government” was not without meaning to Māori. Many had knowledge of the government of New South Wales, and some had even visited Britain. Māori accepted the Crown would govern settlers under British law.</p>
<p>Māori also accepted the Crown would “protect” them. In <a href="https://www.waitangitribunal.govt.nz/treaty-of-waitangi/translation-of-te-reo-maori-text/">Kawhuru’s translation</a>, that protection was for “the unqualified exercise of their chieftainship over their lands, villages, and treasures”, and over “all ordinary people of New Zealand”, who would have “the same rights and duties of citizenship as the people of England”.</p>
<p>Kawharu also noted that “chieftainship” was based on limited authority and is best understood as “trusteeship”. By implication, then, chieftainship did not mean sovereignty. This idea was simply not in the Māori conceptual toolbox at the time.</p>
<p>An Indigenous people had agreed that an immigrant people could come to their land and be governed, not by Indigenous authorities, but by an immigrant government. </p>
<p>The Indigenous people also agreed that the immigrant government had a duty of protection over them: not just over the authority of their chiefs, but also over the “ordinary people”. </p>
<p>Such protection would require action to prevent tribal warfare and end slavery. It stretches credibility to interpret these agreements as meaning Māori signatories of Te Tiriti retained “absolute sovereignty”.</p>
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Read more:
<a href="https://theconversation.com/explainer-the-significance-of-the-treaty-of-waitangi-110982">Explainer: the significance of the Treaty of Waitangi</a>
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<h2>Secular sovereignty</h2>
<p>Why is interpretation of Te Tiriti so subject to debate? One answer is that we are confused by misunderstanding of the concept of “sovereignty”. </p>
<p>It is a word and idea with big connotations. Traditionally it was drawn from the power of monarchies, the authority of which was said to be derived from God. The Crown was held by a single person. </p>
<p>In Māori terms it has been retrospectively interpreted as “<a href="https://maoridictionary.co.nz/search?keywords=mana">mana</a>”, another concept with big emotional resonance. In 2013, when arguing the <a href="https://thespinoff.co.nz/atea/13-11-2019/an-insiders-guide-to-the-ngapuhi-settlement">Ngāpui claim</a> at the Waitangi Tribunal, Crown Law defined sovereignty as meaning “absolute and undivided power to make law”. </p>
<p>But this legal interpretation is incomplete. Making law is but one part of sovereignty, and not necessarily the most important one.</p>
<p>Secular understanding of the concept of sovereignty emerged after disastrous civil wars in England and France, and devastating wars throughout Europe. </p>
<p>In England, a king was executed and a republic temporarily established. There was much fear, uncertainty and insecurity. Secular sovereignty is rooted in a belief in the need for a government that can preserve peace and order and thus protect its citizens. </p>
<p>That government must also be able to defend its borders and protect against foreign incursion. There can be little doubt Māori ceded those protective aspects of sovereignty to the Crown in 1840.</p>
<p>However, in Article Two of Te Tiriti, Māori retained the continuation of chiefly authority over their peoples. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/571539/original/file-20240125-17-upvr3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="fragment of Te Tiriti" src="https://images.theconversation.com/files/571539/original/file-20240125-17-upvr3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/571539/original/file-20240125-17-upvr3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=335&fit=crop&dpr=1 600w, https://images.theconversation.com/files/571539/original/file-20240125-17-upvr3m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=335&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/571539/original/file-20240125-17-upvr3m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=335&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/571539/original/file-20240125-17-upvr3m.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=421&fit=crop&dpr=1 754w, https://images.theconversation.com/files/571539/original/file-20240125-17-upvr3m.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=421&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/571539/original/file-20240125-17-upvr3m.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=421&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A fragment of Te Tiriti signed at Waitangi in 1840.</span>
<span class="attribution"><span class="source">Wikimedia Commons</span></span>
</figcaption>
</figure>
<h2>Sovereignty of the people</h2>
<p>Some legal historians now argue that at the time of the signing of Te Tiriti in 1840, the British Colonial Office understood British sovereignty to be consistent with a pluralistic recognition of persisting Indigenous political and legal authorities. In other words, sovereignty could be shared. </p>
<p>But an abstract, absolute and undivided legal understanding of sovereignty was soon imposed, and Te Tiriti ignored.</p>
<p>Yet during the 20th century the tide turned. Changes in the meaning of sovereignty under democratic government have recovered its pluralist interpretation. Meanwhile, governments’ protective powers have also grown. They have acquired responsibilities to protect people’s health and welfare in ways few would have anticipated in 1840. </p>
<p>Lawyers continue to describe parliament as sovereign or “supreme” and to speak of “the Crown” as a legal entity. In political terms, the Crown is a useful fiction that sums up a much more complex set of phenomena. It is a symbol of sovereignty, not its reality. </p>
<p>In a democracy, sovereignty is sourced in “the people”. Like everyone else, Māori vote in elections and elect MPs and are therefore part of the Crown: the sovereign people. </p>
<p>The authority of “the people” is transferred to representatives who make decisions for them. Those representatives transfer authority to a cabinet and prime minister. Further authority is transferred into the public service – and beyond it. </p>
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Read more:
<a href="https://theconversation.com/maori-atheism-on-the-rise-the-legacy-of-colonisation-is-driving-a-decline-in-traditional-christian-beliefs-214701">Māori atheism on the rise: the legacy of colonisation is driving a decline in traditional Christian beliefs</a>
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<p>The key to understanding sovereignty is simply this: there is no one consistent “particular place” where decisions with the force of sovereignty are always made. </p>
<p>Between elections, parliament may be supreme in terms of lawmaking, but parliament is subject to election every three years. In a democracy the people are the source of sovereignty but delegate its power to others. And the extent of popular sovereignty may be limited in particular ways by constitutions or treaties – like Te Tiriti o Waitangi.</p>
<p>Sovereignty is effective where, at any one place or time, a binding decision is made within an entire system of government. Sovereignty cannot be divided, because such division would inevitably result in conflict that would often fail to be resolved. </p>
<p>However, sovereignty can be passed around and shared. Sovereignty is not only found in a prime minister’s office or in cabinet. Sovereignty is found in many places, at different times: or at the same time in many places, when multiple choices are being made by different actors about various different things. </p>
<p>So long as those choices are recognised as decisive at that time, and on that matter, there is no paralysis or divided authority. Although, of course, they may be challenged later by other arms of government, such as in the courts.</p>
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Read more:
<a href="https://theconversation.com/new-zealands-indigenous-reconciliation-efforts-show-having-a-treaty-isnt-enough-49890">New Zealand's indigenous reconciliation efforts show having a treaty isn't enough</a>
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<h2>Te Tiriti and the constitution</h2>
<p>Sovereignty is found in the legislation passed by parliament, but also in the way the courts interpret that legislation. It is found in the decisions made by the police to prosecute or not prosecute, and in the ways the police choose to use their powers, because the police are not subject to direct ministerial control. </p>
<p>It is found in the policy and administrative decisions made throughout the machinery of government within the framework of legislation, and in non-governmental organisations that have been delegated to run government programmes. </p>
<p>It is found where any private individual or organisation can use powers made effective by legislation and delegations of authority, such as the ability of a private company to issue a parking fine. </p>
<p>Sovereignty lies behind the ways in which individuals and groups can claim ownership and control of resources, as it is “the Crown” that recognises and protects property rights.</p>
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<strong>
Read more:
<a href="https://theconversation.com/learning-to-live-with-the-messy-complicated-history-of-how-aotearoa-new-zealand-was-colonised-172219">Learning to live with the 'messy, complicated history' of how Aotearoa New Zealand was colonised</a>
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<p>Some claim that elections based on popular sovereignty and majority rule ignore the rights of minorities. But others argue that in a representative democracy minority rule is a bigger problem than majority rule. </p>
<p>Majority votes in elections are modified and constrained by deliberation in parliament, including public submissions that can bring minority concerns to the table, as well as the influential lobbying of special interests.</p>
<p>The interpretation and application of law may be challenged in the courts, where interpretations of Te Tiriti o Waitangi may also be brought to bear.</p>
<p>The institutions of government in Aotearoa New Zealand have evolved since 1840 and in the process have been fundamentally transformed. Because we do not have a formal constitution, our institutions have adapted to changing needs and demands. </p>
<p>If we can more clearly accept, define and clarify its constraints on popular sovereignty, Te Tiriti’s promise that Māori iwi and hapū should govern themselves as much as is possible can be addressed under our existing constitution, and can be accommodated within its liberal democratic principles.</p><img src="https://counter.theconversation.com/content/220201/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jack Vowles does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If Māori did not explicitly cede sovereignty in 1840, neither did they fully retain it. If sovereignty is already being shared, where does Te Tiriti o Waitangi sit within our unwritten constitution?Jack Vowles, Professor of Political Science, Te Herenga Waka — Victoria University of WellingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2053842023-05-28T20:06:27Z2023-05-28T20:06:27ZFar from undermining democracy, The Voice will pluralise and enrich Australia’s democratic conversation<figure><img src="https://images.theconversation.com/files/527618/original/file-20230523-23-trurlw.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Cheryl Axleby reads the Uluru Statement from the Heart outside South Australia’s Parliament in Adelaide on March 26, after SA becomes the first state to legislate for an Indigenous Voice.</span> <span class="attribution"><span class="source">Matt Turner/AAP</span></span></figcaption></figure><p>Does the proposal for a Voice to Parliament prefigure a distinctive conception of democracy for Australia? A steady drumbeat of criticism to date has been that it will, instead, undermine our liberal democratic institutions.</p>
<p>One version of this concern is that an Indigenous Voice violates the principle of <a href="https://www.theguardian.com/australia-news/2023/may/02/liberals-accused-of-flirting-with-far-right-fringe-after-sky-news-show-where-indigenous-voice-compared-to-apartheid">equal citizenship</a> and equality before the law. Another is that it introduces a divisive form of <a href="https://www.cis.org.au/commentary/opinion/voice-a-dagger-to-the-heart-of-liberalism/">racial politics</a> into our public life. Some claim it will have little impact on improving the lives of Indigenous people. Yet others say it will have <a href="https://www.youtube.com/watch?v=R7w7tgDccx0">too much power</a>. </p>
<p>A significant part of the debate has been carried out — so far, at least — in a negative tone, and even by some of its supporters. The focus has been on what the Voice won’t do and what its limits are, and less about what it can do. </p>
<p>Of course, the Yes campaign is only just beginning. And there have been powerful statements of support from different sections of the community. State governments, sporting codes, companies, and community organisations have expressed their support in various ways. </p>
<p>However, I want to place the proposal for a Voice into a broader context of democratic innovation and renewal. Taken in isolation, claims about whether the Voice should make “representations” only to Parliament, or also to “executive government”, can seem rather arcane and confusing. </p>
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Read more:
<a href="https://theconversation.com/the-voice-isnt-apartheid-or-a-veto-over-parliament-this-misinformation-is-undermining-democratic-debate-205474">The Voice isn't apartheid or a veto over parliament – this misinformation is undermining democratic debate</a>
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<p>Concerns about judicial activism and the rule of law, detached from a broader account of how the interplay between law and politics works in a representative democracy, can be <a href="https://theconversation.com/what-happens-if-the-government-goes-against-the-advice-of-the-voice-to-parliament-200517">misleading</a>. We are not, for example, as a result of the Voice, on the verge of a massive transfer of power to the High Court, as just about every credible legal commentator has made clear. </p>
<p>The American democratic theorist <a href="https://plato.stanford.edu/entries/dewey/">John Dewey</a> said that “the public is a collective called forth by experience of common problems”. </p>
<p>And the way that democratic societies deal with common problems is through public conversation — through what political theorists call “public reasoning”. </p>
<p>The Australian public is being called forth through the referendum process to address the unresolved status of Indigenous peoples in our body politic. We need a richer account of democracy within which to locate the proposal for a Voice to raise the quality of our debate about it. </p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527613/original/file-20230523-17381-3mo8a.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Minister for Indigenous Australians Linda Burney and Australian Attorney-General Mark Dreyfus react after the introduction of the bill to establish an Aboriginal and Torres Strat Islander Voice in the House of Representatives.</span>
<span class="attribution"><span class="source">Lukas Coch/AAP</span></span>
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<h2>Distinctive qualities</h2>
<p>What is distinctive about the Voice is both its democratic pedigree and its democratic character. Although there are reasonable questions about how much more democratic it could have been, the emergence of the proposal for the Voice from community led dialogues across Australia lends it strong democratic credence. </p>
<p>And at the heart of it is a mechanism for improving the quality of decision making about matters that affect Indigenous peoples. </p>
<p>The desire to anchor the Voice in the constitution is intended both to protect it from being subject to the whims of electoral politics, and to mark the special place Indigenous peoples have in our history. </p>
<p>There is both a forward looking and remedial aspect to this form of recognition. Given the persistent gap in life prospects between Indigenous and non-Indigenous peoples over decades, we know our existing institutions are not working. But equally, given the complexity of these issues, and the ongoing legacies of colonial dispossession, we need to find ways to keep working through these challenges together. </p>
<p>The proposal is also unique globally. In Canada, <a href="https://laws-lois.justice.gc.ca/eng/const/index.html">the Constitution Act of 1982</a> recognised “existing” Aboriginal treaty rights, resulting in a long march through the courts to figure out exactly what that means. In the United States, the <a href="https://www.justice.gov/enrd/timeline-event/federal-trust-doctrine-first-described-supreme-court">“domestic dependent</a> nation status of Indian nations, formulated by the Supreme Court in the 19th century, has meant, again, that the courts have led the conversation. In New Zealand, the establishment of the <a href="https://www.waitangitribunal.govt.nz/treaty-of-waitangi/">Waitangi Tribunal</a> (a commission of inquiry, chaired by a judge) and reserved parliamentary seats for Maori, has resulted in a very different kind of political process for resolving purported breaches of the treaty. </p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/history-and-myth-why-the-treaty-of-waitangi-remains-such-a-bloody-difficult-subject-202038">History and myth: why the Treaty of Waitangi remains such a ‘bloody difficult subject’</a>
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<p>The proposed Voice to Parliament, on the other hand, is seeking to anchor Indigenous perspectives in the constitution, but also at the heart of our democratic institutions. </p>
<p>So, what is the best way of conceiving of the kind of democracy that I think the Voice is calling for? </p>
<p>One of the fundamental values underpinning democracy is political equality. But what kind of political equality? The idea of equality appealed to by many critics of the Voice is too simplistic. Often, it’s a claim that equal treatment means the <em>same</em> treatment, in every circumstance. </p>
<p>But our legal and political institutions already make sense of equality in much richer ways. To treat someone equally requires that we answer at least two further questions: equal in what respect? And to what extent do their circumstances require further consideration in figuring out how to treat them equally?</p>
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<a href="https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527617/original/file-20230523-14061-5n2cn5.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">What is the best way of conceiving of the kind of democracy that the Voice is calling for?</span>
<span class="attribution"><span class="source">Lukas Koch/AAP</span></span>
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<p>There are two elements to what I’ll call <em>democratic</em> political equality. </p>
<p>The first are those rights that citizens need to protect them from the harms that both the state and society can do. These include the classic protections of freedom of assembly, of religion, of speech, of property and bodily integrity. </p>
<p>The second element, however, and too often neglected, is the positive freedoms associated with participation in public life. We can only ever truly secure our freedoms when we share equally in the power being exercised over us. Citizens need to have the opportunity to shape the laws to which they are subject; in short, they must be empowered. </p>
<p>Most importantly, as leading democratic theorists such as Jurgen Habermas and Danielle Allen have argued, these public and private freedoms are mutually dependent: you can’t fully realise one without the other. Thus democracy, on this reading, is instrumentally valuable — it protects us from harms and enables us to pursue our own interests. But it is also intrinsically valuable — it helps us lead better lives by empowering us to shape the society within which we live. </p>
<h2>‘Public reasoning’</h2>
<p>Another aspect underpinning the kind of democracy the Voice is calling for is what I referred to above as "public reasoning”. Put simply, in a democracy, you solve problems through public conversation. But the terms of these conversations — who participates and how, as well as the kinds of reasons one can or shouldn’t appeal to — matter. </p>
<p>It’s not that citizens engage as if they were in a philosophy seminar, or in a court of law. Rather, it’s that we agree to resolve our disagreements, or continue to live with them, as best we can, through dialogue. These conversations will often be difficult and frustrating, as well as incomplete and disorienting. But the spirit driving them, ultimately, must be one of mutual respect and persuasion, rather than the exercise of arbitrary power. </p>
<p>However, citizens are unequally positioned relative to each other in terms of how they can participate in these public conversations. Hence why the positive freedoms I mentioned above are so important to secure. </p>
<p>Some have more access to resources than others. Some are more eloquent or forceful than others. Majority cultures tend to shape public discussions and institutions in both explicit and implicit ways that can disadvantage minorities.</p>
<p>Thus, we need to design democratic institutions so that they are responsive to the deep pluralism of our society. We need to multiply the ways in which diverse citizens and groups can participate in public debate and policy making. This cuts against technocratic forms of rule, as well as rule by simply majority. </p>
<p>I think this is the best interpretation of what “making representations” to parliament and the executive in the draft constitutional amendment means and why it should be preserved. It’s about creating a mechanism for pluralising and enriching Australia’s democratic conversation. It’s not about identity politics. It’s not intended as a conversation stopper. </p>
<p>Finally, this way of conceiving of democracy should shape our conception of democratic citizenship. It’s not simply a legal status, and nor is it mainly about voting and obeying the law. Instead, citizenship becomes a richer, more capacious ideal. </p>
<p>According to this richer ideal, democratic citizenship also involves the development of forms of self-awareness and self-formation through a wide range of deliberations about our existing institutions. Our sense of common interests, for example, can expand as we encounter new claims, or re-interpretations of existing ones, that we were previously unaware of. Pluralising public reason creates room for democratic innovation. </p>
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<a href="https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=885&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=885&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=885&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1113&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1113&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527608/original/file-20230523-23-qpdoyq.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1113&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<p>Deva Woodly, in her <a href="https://global.oup.com/academic/product/reckoning-9780197603956?cc=au&lang=en&#">brilliant analysis</a> of the emergence of the Black Lives Matter movement, uses the analogy of “swailing” — or what we know as the Aboriginal land management practice of “<a href="https://theconversation.com/painting-with-fire-how-northern-australia-developed-one-of-the-worlds-best-bushfire-management-programs-205113">cool burning</a>” — to analogise the kind of renewal that social movements generate for fragile democratic environments. </p>
<p>Woodly points out how these movements draw out the contradictions between ideals and political realities, and demonstrate that democracy is always an incomplete process. The social movements that have led to the Uluru statement — going back over decades — have provided a kind of democratic cool burning for Australian public discourse. </p>
<h2>Democratic all the way down</h2>
<p>In proposing a new mechanism for enhancing Indigenous voices in our political institutions, the Voice is appealing to the interdependence between public and private freedoms, as well as the value of government through public reasoning. </p>
<p>Note that framing the Voice in this way also offers us a means of assessing how best to design and implement the details, if the constitutional amendment is approved. </p>
<p>Democratic values cut in both directions. The way that local and regional Indigenous communities select and engage with their Voice representatives, as well as those in Canberra, will be critical. </p>
<p>The norms that govern those processes will need to reflect the broader democratic intent of the Voice. The <a href="https://ncq.org.au/resources/indigenous-voice-co-design-process-final-report-to-australian-government/#:%7E:text=The%20Indigenous%20Voice%20Co%2Ddesign,the%20Australian%20Government%20and%20Parliament.">final report</a> of the Indigenous co-design process is a good place to start for exploring these different possibilities. </p>
<p>Let’s return to some of the criticisms we began with: Is the Voice introducing division where there is unity, racial categories where there is neutrality, and inequality where there is equality? I think the answer is clearly no. </p>
<p>First, the social, economic, and political baseline we are starting from is radically unequal. Almost everyone agrees that the gap between Aboriginal and Torres Strait Islanders’ wellbeing and that of the rest of the population is shameful. </p>
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Read more:
<a href="https://theconversation.com/first-nations-people-in-the-nt-receive-just-16-of-the-medicare-funding-of-an-average-australian-183210">First Nations people in the NT receive just 16% of the Medicare funding of an average Australian</a>
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<p>Second, it’s not Indigenous people who have insisted on introducing racial categories into our politics, but rather successive Australian governments and the legal and political institutions that arose from settlement. It was the High Court, after all, that drew on the Racial Discrimination Act, among other sources, to remove long entrenched legal obstacles to the recognition of native title in <a href="https://aiatsis.gov.au/explore/mabo-case">Mabo</a>. </p>
<p>And it was the Australian government that suspended the application of that act when it legislated the Northern Territory “<a href="https://humanrights.gov.au/our-work/social-justice-report-2007-chapter-3-northern-territory-emergency-response-intervention">Intervention</a>” in 2007. </p>
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<a href="https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=398&fit=crop&dpr=1 600w, https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=398&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=398&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=500&fit=crop&dpr=1 754w, https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=500&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/527616/original/file-20230523-27-3hohcr.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=500&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">A 2008 protest march in Sydney against the NT Intervention. The Australian government suspended the application of the Racial Discrimination Act when it legislated for the Intervention.</span>
<span class="attribution"><span class="source">Dean Lewins/AAP</span></span>
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<p>Race, in other words, has been a primary tool of the state over many years, not the social movements that have sought justice for Aboriginal people. The Voice isn’t a proposal for reintroducing racial categories into our civic identity, despite what <a href="https://www.abc.net.au/news/2023-05-22/peter-dutton-says-indigenous-voice-will-re-racialise-the-country/102378700">Peter Dutton</a> recently claimed. In fact, quite the opposite: it is an attempt to reconfigure that identity so that it no longer reflects the racial injustices of the past (and the present). </p>
<p>This democratic framing can also help us think through a deep criticism of the Voice from the left. Some have argued that nothing less than a treaty, rather than a deliberative body, is required to fully disrupt the colonial edifice of the Australian state. The Voice, on this reading, is a form of entrapment; it naturalises settler law and the colonial political order. </p>
<p>However, if we see the constitutional recognition of an Indigenous Voice in democratic terms (and assuming it can indeed reflect the diverse voices of Indigenous peoples), then it offers a practical way of working through these profound questions. </p>
<p>The Uluru statement is, after all, rooted in a claim of continuing sovereignty. Nothing about the referendum process requires a repudiation of that.</p>
<p>However, the establishment of a constitutionally recognised deliberative body puts in place a mechanism for an ongoing conversation between peoples that could, over time, reconfigure these relations.</p>
<p>It offers a means for enlarging and deepening our public reasoning about not only the consequences of the past, but our collective aspirations for the future.</p><img src="https://counter.theconversation.com/content/205384/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Duncan Ivison has received funding from the Australian Research Council for projects related to the themes of this article. </span></em></p>We need a richer account of democracy within which to locate the Voice, to lift the quality of public debate about it.Duncan Ivison, Professor of Political Philosophy, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2046762023-05-01T02:00:03Z2023-05-01T02:00:03ZAustralians should be wary of scare stories comparing the Voice with New Zealand’s Waitangi Tribunal<figure><img src="https://images.theconversation.com/files/523533/original/file-20230501-4343-38yupq.jpg?ixlib=rb-1.1.0&rect=74%2C1721%2C3012%2C2503&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Fragment of the Treaty of Waitangi, signed in 1840.</span> </figcaption></figure><p>Australian Senator Jacinta Nampijinpa Price’s <a href="https://www.stuff.co.nz/pou-tiaki/131876087/australian-politician-jacinta-price-claims-waitangi-tribunal-holds-veto-power-over-new-zealand-government">recent claim</a> that New Zealand’s Waitangi Tribunal has veto powers over parliament was met with surprise in New Zealand, especially by the members of the tribunal itself. That’s because it is just plain wrong.</p>
<p>As the debate around the Voice to Parliament ramps up, we can probably expect similar claims to be made ahead of this year’s referendum. But the issue is so important to Australia’s future that such misinformation should not go unchallenged.</p>
<p>From an Australian perspective, New Zealand may appear ahead of the game in recognising Indigenous voices constitutionally. But that has certainly not extended to granting a parliamentary power of veto to Māori.</p>
<p>The <a href="https://www.waitangitribunal.govt.nz/">Waitangi Tribunal</a> was originally established as a commission of inquiry in 1975, given the power only to make recommendations to government. And so it remains. The Crown alone appoints tribunal members and many are non-Māori.</p>
<p>As with all commissions of inquiry, it’s up to the government of the day to make a political decision about whether or not to implement those recommendations. </p>
<h2>Deceptive and wrong</h2>
<p>Price’s claim echoed a February <a href="https://ipa.org.au/ipa-today/the-new-zealand-maori-voice-to-parliament-and-what-we-can-expect-from-australia">article and paper</a> published by the Institute of Public Affairs, aimed at influencing the Voice referendum. Titled “The New Zealand Māori voice to Parliament and what we can expect from Australia”, it was written by the director of the institute’s legal rights program, John Storey.</p>
<p>The paper makes a number of assertions: the Waitangi Tribunal has a veto over the New Zealand parliament’s power to pass certain legislation; the Waitangi Tribunal was established to hear land claims but its brief has expanded to include all aspects of public policy; and the Waitangi Tribunal “shows the Voice will create new Indigenous rights”.</p>
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<strong>
Read more:
<a href="https://theconversation.com/what-australia-could-learn-from-new-zealand-about-indigenous-representation-201761">What Australia could learn from New Zealand about Indigenous representation</a>
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<p>The last of the statements is deceptive and the others are completely wrong. The Waitangi Tribunal’s jurisdiction was largely set in stone by the New Zealand parliament in 1975 when it was established. </p>
<p>Far from investigating land claims, it initially wasn’t able to examine any claims dating from before 1975. Parliament changed the tribunal’s jurisdiction in 1985, giving it retrospective powers back to 1840 (when the <a href="https://teara.govt.nz/en/te-tiriti-o-waitangi-the-treaty-of-waitangi">Treaty of Waitangi/te Tiriti o Waitangi</a> was signed).</p>
<p>The tribunal then started hearing land claims. But in its first decade, it focused on fisheries, planning issues, the loss of Māori language, government decisions being made at the time and general issues of public policy. </p>
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<img alt="" src="https://images.theconversation.com/files/523536/original/file-20230501-1209-q6y0pk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/523536/original/file-20230501-1209-q6y0pk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/523536/original/file-20230501-1209-q6y0pk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/523536/original/file-20230501-1209-q6y0pk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/523536/original/file-20230501-1209-q6y0pk.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/523536/original/file-20230501-1209-q6y0pk.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/523536/original/file-20230501-1209-q6y0pk.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Honouring the Treaty: New Zealand Prime Minister Chris Hipkins at the 2023 Waitangi Day commemorations.</span>
<span class="attribution"><span class="source">Getty Images</span></span>
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<h2>Historic grievances</h2>
<p>Over the past 38 years, the tribunal has focused on what are called “historical Treaty claims”, covering the period 1840 to 1992. In 1992 a <a href="https://www.legislation.govt.nz/act/public/1992/0121/latest/DLM281433.html">major settlement</a> of fishing claims began an era of negotiation and settlement of these claims, quite separate from the tribunal itself. </p>
<p>With the majority of significant historic claims now settled or in negotiation, that aspect of the tribunal’s work is coming to an end. It has returned to hearing claims about social issues and other more contemporary issues. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/solicitor-general-confirms-voice-model-is-legally-sound-will-not-fetter-or-impede-parliament-204266">Solicitor-general confirms Voice model is legally sound, will not 'fetter or impede' parliament</a>
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<p>Far from expanding its jurisdiction, the tribunal’s powers have been steadily reduced in recent decades. In 1993, it lost the power to make recommendations involving private land – that is, land not owned by the Crown. In 2008 it lost the power to investigate new historical claims, as the government looked to close off new claims that could undermine current settlements. </p>
<p>There is one area where the tribunal was given the power to force the Crown to return land. The 1984-1990 Labour government set a policy to rid itself of what were seen as surplus Crown assets. A deal was struck between Māori claimants and the Crown to allow the tribunal to make binding recommendations to return land in very special cases. </p>
<p>This compromise was not created by the tribunal but through ambiguity in legislation, which was resolved in favour of Māori claimants in the Court of Appeal. The ability to return land has almost never been used and is being progressively repealed across the country as Treaty settlements are implemented in legislation.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1651634101139681282"}"></div></p>
<h2>Wide political support</h2>
<p>Storey quotes a number of tribunal reports, which make findings about the Crown’s responsibilities, as if these findings are binding on the Crown or even on parliament. This is not the case. The Waitangi Tribunal investigates claims that the Crown has acted contrary to the “<a href="https://www.waitangitribunal.govt.nz/publications-and-resources/waitangi-tribunal-reports/ngatiwai-mandate-inquiry/chapter-3/">principles of the Treaty</a>”. </p>
<p>The Waitangi Tribunal establishes what those principles are, but they are binding on neither the courts nor parliament. Having made findings, the tribunal makes recommendations – not to parliament, as Storey suggests, but to ministers of the Crown. Some recommendations are implemented, others are not. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/explainer-the-significance-of-the-treaty-of-waitangi-110982">Explainer: the significance of the Treaty of Waitangi</a>
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<p>Where there is a dispute between the Crown and Māori, the tribunal has often recommended negotiation rather than make specific recommendations for redress.</p>
<p>Storey has <a href="https://ipa.org.au/ipa-today/new-zealand-shows-us-how-the-voice-will-work">elsewhere referred</a> to the tribunal as a “so-called advisory, now binding, Māori Voice to Parliament” that has “decreed” certain things. In the longer paper he does admit the “tribunal cannot dictate the exact form any redress offered by government must take”. But he then falls back on the notion of a “moral veto” – that its status is so elevated that parliament is forced, however reluctantly, to do its bidding.</p>
<p>Yet not only does the Crown ignore tribunal recommendations as it chooses, it refuses even to be bound by the tribunal’s expert findings on history in negotiating settlements.</p>
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<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/what-actually-is-a-treaty-what-could-it-mean-for-indigenous-people-200261">What actually is a treaty? What could it mean for Indigenous people?</a>
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<p>The Waitangi Tribunal will remain a permanent commission of inquiry because there is wide political support for its work. Nor can be it held solely responsible for increasing Māori assertiveness or political engagement with government, even if this was in any way a bad thing. </p>
<p>A larger social shift has taken place in Aotearoa New Zealand over the past few decades. No fiat from the Waitangi Tribunal has eliminated the cultural misappropriation of Māori faces and imagery – something Storey warns could mean “tea towels with a depiction of Uluru/Ayers Rock, or boomerang fridge magnets, would become problematic”.</p>
<p>The Waitangi Tribunal has often done no more than make Māori histories, Māori perspectives and Māori values accessible to a non-Māori majority. It has certainly had no power to control where debates on Indigenous issues fall.</p><img src="https://counter.theconversation.com/content/204676/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Belgrave was Research Manager for the Waitangi Tribunal, 1990-1993, and was commissioned at various times until 2006 to undertake historical research for the Tribunal.</span></em></p>Far from expanding its jurisdiction or having a veto over parliament, the powers of New Zealand’s Waitangi Tribunal have been steadily reduced in recent decades.Michael Belgrave, Professor of History, Massey UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1954352022-12-01T01:58:23Z2022-12-01T01:58:23ZA new law offers better protection for indigenous plants of significance to Māori, but no requirement to share profits<figure><img src="https://images.theconversation.com/files/498351/original/file-20221130-18-yjbbq9.jpg?ixlib=rb-1.1.0&rect=20%2C321%2C6689%2C4013&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock/Fabrizio Guarisco</span></span></figcaption></figure><p>New Zealand law has generally treated agriculture, biodiversity conservation and the protection of Indigenous knowledge (mātauranga Māori) as separate areas. </p>
<p>This changed last month when parliament passed a major reform of the <a href="https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_111271/plant-variety-rights-bill">law covering plant variety rights</a>.</p>
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<img alt="Red kiwifruit" src="https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=560&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=560&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=560&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=704&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=704&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498094/original/file-20221129-15856-giip2f.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=704&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">The red kiwifruit is protected under intellectual property rights.</span>
<span class="attribution"><span class="source">Shutterstock/Tommy Atthi</span></span>
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<p>Plant Variety Rights (PVR) are a form of intellectual property designed to encourage innovation in plant breeding and to reward breeders for these efforts. In Aotearoa, popular examples of plants protected under the PVR system include the red kiwifruit and Honeycrisp apples. </p>
<p>The <a href="https://www.legislation.govt.nz/bill/government/2021/0035/latest/LMS352239.html">reform</a> continues to offer this kind of intellectual property to plant breeders, but the law now also extends new protections for the guardian (kaitiaki) relationships Māori have with taonga plant species, as well as for mātauranga Māori. But it stops short of requiring that any benefits from the commercial use of these plants be shared.</p>
<h2>What are taonga plants?</h2>
<p>The new act defines taonga plants as those Māori have special relationships with, either because they are indigenous to Aotearoa or because they are believed to have been brought to the country before European settlement from other parts of the Pacific region. </p>
<p>Iwi, hapū and whānau have kaitiaki relationships with many plant species, grounded in reciprocal and mutual obligations. Māori consider taonga plants as tūpuna (ancestors) and kaitiaki have direct whakapapa (genealogical) connections to them. Mātauranga Māori forms the basis of these kaitiaki relationships, encompassing inter-generational knowledge about how to care for and sustainably use these plants. </p>
<p>For example, Ngāi Tahu has long used taramea (<em>Aciphylla</em> or speargrass) as a fragrance. Historically, taramea resin was extracted through cuttings or fire, processed and preserved, and rubbed on the hair and body. Taramea was also a valuable item in trade between Ngāi Tahu and northern tribes.</p>
<figure class="align-center ">
<img alt="Close-up of the native speargrass taramea." src="https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498348/original/file-20221130-22-vyt845.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The native speargrass taramea is a traditional source of fragrance.</span>
<span class="attribution"><span class="source">Shutterstock/Molly NZ</span></span>
</figcaption>
</figure>
<p>The protection of taonga plants, kaitiaki relationships and mātauranga Māori is required under the Treaty of Waitangi, which was signed between the British Crown and Māori rangatira (chiefs) in 1840 and guarantees Māori will retain rangatiratanga (chieftainship) over their taonga. </p>
<p>Throughout the 20th century, it was clear this promise was not being upheld. After the original Plant Variety Rights Act was passed in 1987, claimants representing various iwi and hapū brought a legal action (<a href="https://www.wai262.nz/">Wai 262</a>) before the Waitangi Tribunal, alleging the Crown had failed to respect Māori rangatiratanga over indigenous biodiversity. </p>
<p>After 20 years of weighing evidence, the tribunal published a <a href="https://waitangitribunal.govt.nz/news/ko-aotearoa-tenei-report-on-the-wai-262-claim-released/">report</a> in 2011, recommending a “<a href="https://www.tpk.govt.nz/en/a-matou-whakaarotau/te-ao-maori/wai-262-te-pae-tawhiti">whole-of-government</a>” approach to protect taonga flora and fauna, and mātauranga Māori. This law reform is the most significant legal development to date.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/australias-plants-and-animals-have-long-been-used-without-indigenous-consent-now-queensland-has-taken-a-stand-144813">Australia's plants and animals have long been used without Indigenous consent. Now Queensland has taken a stand</a>
</strong>
</em>
</p>
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<h2>Preventing misappropriation</h2>
<p>Legal issues aside, it is important to protect taonga plants and mātauranga Māori for ethical reasons. For years, kaitiaki relationships have been threatened as non-Māori have benefited from the use of indigenous plants and knowledge. </p>
<figure class="align-right ">
<img alt="Detail of a flowering kōwhai." src="https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/498349/original/file-20221130-24-6ja2gl.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Kōwhai varieties are sold commercially through nurseries.</span>
<span class="attribution"><span class="source">Shutterstock/patjo</span></span>
</figcaption>
</figure>
<p>Nurseries and other non-Māori entities have claimed intellectual property rights over improved varieties of taonga species. Examples include harakeke (flax; <em>Phormium tenax</em>), kāpuka (broadleaf; <em>Griselinia littoralis</em>), korokio (wire-netting bush; <em>Corokia cotoneaster</em>), kōwhai (<em>Sophora microphylla</em>), and tī rākau/tī kōuka (cabbage tree; <em>Cordyline australis</em>). </p>
<p>In most (maybe all) cases, kaitiaki do not receive any direct financial or other benefits from the commercialisation and sale of taonga plants where plant variety rights are owned by non-Māori organisations.</p>
<h2>Protection under the new act</h2>
<p>The reformed act contains several new protections. When plant breeders apply for plant variety rights for taonga plants, they now need to meet certain requirements. </p>
<p>For example, if the breeder is aware that a kaitiaki relationship with the plant has been asserted, the breeder must engage directly with the kaitiaki.</p>
<p>If the kaitiaki finds that granting plant variety rights for the breeder’s variety would have adverse effects on the kaitiaki relationship, the breeder and kaitiaki must agree on how to mitigate these effects.</p>
<p>The law also creates a new Māori plant varieties committee, which holds the power to make binding decisions to nullify or cancel or impose conditions on any grants of plant variety rights for taonga species that may have adverse effects on kaitiaki relationships.</p>
<p>The new protections are commendable, but there are some gaps in the law. </p>
<h2>No shared benefits from commercial use</h2>
<p>The PVR Act allows plant breeders to bring legal actions against those who infringe their intellectual property rights. But the law does not contain similar enforcement mechanisms where mātauranga Māori is misappropriated. </p>
<p>The act does not require plant breeders who obtain PVR for varieties of taonga plants to share any benefits they receive from commercial uses of these plants with kaitiaki.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/returning-the-three-sisters-corn-beans-and-squash-to-native-american-farms-nourishes-people-land-and-cultures-149230">Returning the 'three sisters' – corn, beans and squash – to Native American farms nourishes people, land and cultures</a>
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</p>
<hr>
<p>Another issue is that the new law adopts the narrow, species-based approach common to intellectual property laws for plant varieties worldwide. The powers of the Māori plant varieties committee only apply to taonga plant species. Kaitiaki have no say over whether exotic plant varieties are introduced into Aotearoa and protected with PVR, which fails to take into account the effects non-taonga plants could have on the whenua (land) and taiao (environment) should they become invasive.</p>
<p>Overall, the reformed PVR Act is an important step in addressing the recommendations of the Waitangi Tribunal on how the Crown should protect taonga plants and mātauranga Māori. But there is still much work to do to ensure that tangata whenua may exercise rangatiratanga over their taonga. </p>
<p>Time will tell whether other <a href="https://www.beehive.govt.nz/release/new-funding-protecting-and-enabling-m%C4%81tauranga-m%C4%81ori">proposed changes</a> – such as the development of a stand-alone intellectual property framework for mātauranga Māori and the creation of a bioprospecting regime – are sufficient to fulfil the promises of Te Tiriti.</p><img src="https://counter.theconversation.com/content/195435/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>This research is generously supported by the University of Canterbury Vision Mātauranga Development Fund. </span></em></p>Plant breeders must now engage with kaitiaki if special relationships with a plant have been asserted. But Māori have no say on the introduction of exotic plants that could become invasive.David Jefferson, Lecturer, University of CanterburyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1470172020-10-01T19:59:05Z2020-10-01T19:59:05ZCan colonialism be reversed? The UN’s Declaration on the Rights of Indigenous Peoples provides some answers<p>Can a state built upon the “<a href="https://nwo.org.nz/wp-content/uploads/2018/06/MatikeMaiAotearoa25Jan16.pdf">taking of another people’s lands, lives and power</a>” ever really be just?</p>
<p>Colonialism can’t be reversed, so at a simple level the answer is no.</p>
<p>But in my book, <a href="https://press.anu.edu.au/publications/%E2%80%98we-are-all-here-stay%E2%80%99">‘We Are All Here to Stay’</a>, published last week, I argue colonialism need not be a permanent state. </p>
<p>The <a href="https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html">United Nations Declaration on the Rights of Indigenous Peoples</a>, which New Zealand is currently thinking about implementing, shows how and why.</p>
<p>New Zealand, Australia, Canada and the United States were the only UN members to <a href="https://www.un.org/development/desa/indigenouspeoples/declaration-on-the-rights-of-indigenous-peoples.html">oppose</a> the declaration when it was adopted in 2007. They were worried about the constraints they thought it would place on state authority, in particular over <a href="https://www.un.org/press/en/2007/ga10612.doc.htm">Indigenous land</a>.</p>
<p>All four have since changed their positions. In 2010, then New Zealand Prime Minister John Key <a href="https://www.beehive.govt.nz/release/national-govt-support-un-rights-declaration">argued</a>:</p>
<blockquote>
<p>While the declaration is non-binding, it both affirms accepted rights and establishes future aspirations. My objective is to build better relationships between Māori and the Crown, and I believe that supporting the declaration is a small but significant step in that direction.</p>
</blockquote>
<h2>The state’s right to govern is not absolute</h2>
<p>The <a href="https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf">declaration</a> recognises the state’s right to govern. But it also constrains it by recognising self-determination as a right that belongs to everybody — to Indigenous peoples as much as anybody else.</p>
<p>Self-determination has far-reaching implications for rights to land, language and culture and for government policy in areas such as health, education and economic development.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/how-to-improve-health-outcomes-for-indigenous-peoples-by-making-space-for-self-determination-120070">How to improve health outcomes for Indigenous peoples by making space for self-determination</a>
</strong>
</em>
</p>
<hr>
<p>The declaration’s 46 articles challenge the idea of state sovereignty as an exclusive and absolute right to exercise authority over Indigenous peoples. It parallels New Zealand’s <a href="https://nzhistory.govt.nz/politics/treaty/the-treaty-in-brief">Treaty of Waitangi</a> by affirming Indigenous peoples’ authority over their own affairs and their right to meaningful influence as citizens of the state.</p>
<p>The fact that 144 UN member states voted for the declaration shows that the international community regards these assumptions as fair and reasonable. The declaration <a href="https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf">states</a>:</p>
<blockquote>
<p>Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.</p>
</blockquote>
<h2>Indigenous people’s right to make their own decisions</h2>
<p>The declaration provides different ways of thinking about political authority. The Māori right to make their own decisions, through iwi (tribes) and other independent institutions, and to participate as members of the wider political community implies a distinctive Māori presence in the sovereign state. </p>
<p>The <a href="https://waitangitribunal.govt.nz/">Waitangi Tribunal</a>, which was established in 1975 to hear alleged breaches of the Treaty of Waitangi, is a forum for thinking about these questions. In a tribunal report concerning Māori culture and identity, Justice Joe Williams, subsequently the first Māori appointed to the Supreme Court of New Zealand, <a href="https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_68356606/KoAotearoaTeneiTT2Vol2W.pdf">argued</a>:</p>
<blockquote>
<p>Fundamentally, there is a need for a mindset shift away from the pervasive assumption that the Crown is Pākehā [non-Māori], English-speaking, and distinct from Māori rather than representative of them. Increasingly, in the 21st century, the Crown is also Māori. If the nation is to move forward, this reality must be grasped.</p>
</blockquote>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-crown-is-maori-too-citizenship-sovereignty-and-the-treaty-of-waitangi-111168">The Crown is Māori too - citizenship, sovereignty and the Treaty of Waitangi</a>
</strong>
</em>
</p>
<hr>
<p>From this perspective, the Crown is an inclusive and unifying institution. It is neither the Pākehā political community, nor the dominant party in a bi-cultural treaty partnership.</p>
<h2>Beyond partnership to independence and authority</h2>
<p>In 2019, the state’s solution to allegations of racist and ineffective practices in its child welfare agency <a href="https://www.orangatamariki.govt.nz/">Oranga Tamariki</a> was to call for <a href="http://maorilawreview.co.nz/2019/02/he-taonga-te-tamariki/">stronger partnerships</a> between Māori and the state. </p>
<p>It is too early to say whether partnership agreements will reduce the numbers of Māori children taken from their families into state care.</p>
<p>But in 2020 independent <a href="https://whanauora.nz/assets/0724d766d5/EXECUTIVE-SUMMARY-REPORT.pdf">reports</a> into Oranga Tamariki show measures more robust than partnership may be required to assure Māori of the declaration’s undertaking that:</p>
<blockquote>
<p>Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group.</p>
</blockquote>
<p>Claims to the Waitangi Tribunal, arguing for independent authority in <a href="https://waitangitribunal.govt.nz/inquiries/kaupapa-inquiries/health-services-and-outcomes-inquiry/">health</a> and <a href="https://www.rnz.co.nz/news/te-manu-korihi/368862/urgent-waitangi-tribunal-hearing-sought-over-charter-school-closures">education</a> and ensuring that Māori benefit fully from <a href="https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_104833137/Report%20on%20the%20TPPA%20W.pdf">international trade agreements</a>, have had mixed success for the Māori claimants. However, the declaration gives <a href="https://www.un.org/development/desa/indigenouspeoples/wp-content/uploads/sites/19/2018/11/UNDRIP_E_web.pdf">international authority</a> to the arguments made.</p>
<blockquote>
<p>Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, Indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programs affecting them and, as far as possible, to administer such programs through their own institutions.</p>
</blockquote>
<p>A colonial state may never be just. But as New Zealand considers its implementation of the declaration, the important moral question is whether the declaration can help people to work out what a state will look like if it no longer reflects the colonial insistence on power over others.</p><img src="https://counter.theconversation.com/content/147017/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dominic O'Sullivan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The impact of colonialism can’t be reversed, but as New Zealand implements the UN declaration new ideas emerge of a state that represents first peoples more fairly.Dominic O'Sullivan, Adjunct Professor, Faculty of Health and Environmental Sciences, Auckland University of Technology, and Associate Professor of Political Science, Charles Sturt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1225482019-09-03T04:46:25Z2019-09-03T04:46:25ZLand occupation at Ihumātao: why the New Zealand government needs to act cautiously but quickly<figure><img src="https://images.theconversation.com/files/290418/original/file-20190902-165977-13hicsy.jpg?ixlib=rb-1.1.0&rect=54%2C108%2C5121%2C3337&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The land occupation at Ihumātao brings together Māori and heritage activists seeking to stop a housing development on a site that marks the earliest human occupation of New Zealand. </span> <span class="attribution"><span class="source">Alika Wells/Wikimedia</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span></figcaption></figure><p>When TJ Perenara took the field for the All Blacks against Australia, in the critical final match of the Bledisloe Cup series last month, he wore a <a href="https://www.stuff.co.nz/sport/rugby/all-blacks/115084786/tj-perenara-wearing-ihumtao-wristband-for-all-blacks-test-against-wallabies">band around his wrist with the word Ihumātao</a>. Perenara is one of a growing number of people drawn to support the protest against a housing development of the <a href="https://nzhistory.govt.nz/media/photo/otuataua-stonefields">Ōtuataua Stonefields</a> on the Manukau Harbour, near Auckland’s international airport.</p>
<p>The protest was applauded rather than condemned. <a href="https://www.nzherald.co.nz/sport/news/article.cfm?c_id=4&objectid=12259628">His coach accepted it</a>, in contrast to the way that similar sporting protests have been <a href="https://www.aljazeera.com/news/2019/08/athletes-face-penalty-podium-protests-pan-games-190812063420362.html">treated recently in the United States</a>. </p>
<p>Led by young and media-savvy women under the banner SOUL (<a href="https://www.protectihumatao.com/">Save our Unique Landscape</a>), Ihumātao has attracted wide public support. It has created a coalition of Māori and heritage activists seeking to preserve one of the last largely unchanged landscapes that records the very earliest human occupation of New Zealand. </p>
<p>So far, Prime Minister Jacinda Ardern has declined <a href="https://www.rnz.co.nz/news/te-manu-korihi/396742/petition-launched-calling-on-jacinda-ardern-to-visit-ihumatao">calls to visit the site</a>. Her caution is well founded, because the conflict has the potential to undermine the long-term settlement of historical grievances. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/290417/original/file-20190902-166019-501c2l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/290417/original/file-20190902-166019-501c2l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=146&fit=crop&dpr=1 600w, https://images.theconversation.com/files/290417/original/file-20190902-166019-501c2l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=146&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/290417/original/file-20190902-166019-501c2l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=146&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/290417/original/file-20190902-166019-501c2l.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=183&fit=crop&dpr=1 754w, https://images.theconversation.com/files/290417/original/file-20190902-166019-501c2l.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=183&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/290417/original/file-20190902-166019-501c2l.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=183&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Ihumātao protest camp and surrounding land.</span>
<span class="attribution"><span class="source">LaurieM/Wikimedia</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>From protest to treaty settlements</h2>
<p>Ihumātau brings together those demanding greater recognition of the site’s sad history. The people from this land were invaded, their homes looted and destroyed and some of their lands confiscated in the 1860s, on a pretext of rebellion. They suffered indignity upon indignity as the pressure of an urbanising Auckland increased. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/local-maori-urge-government-to-address-long-running-dispute-over-rare-cultural-heritage-landscape-113122">Local Māori urge government to address long-running dispute over rare cultural heritage landscape</a>
</strong>
</em>
</p>
<hr>
<p>The events at Ihumātao are reviving forms of protest common in the 1970s, including highly contentious, but ultimately successful <a href="https://e-tangata.co.nz/history/bastion-point-a-desperate-struggle-and-a-dream-fulfilled/">occupations of nearby Bastion Point</a> and the <a href="https://teara.govt.nz/en/speech/36547/eva-rickard-raglan-land-occupation-1978">Raglan Golf Course</a>. Now, these protests are greatly enhanced by new media. </p>
<p>This demonstration of the power of direct action stands in contrast to the slow investigations of the <a href="https://www.waitangitribunal.govt.nz/">Waitangi Tribunal</a> and the <a href="https://www.govt.nz/organisations/te-kahui-whakatau-treaty-settlements/">settlements under the Treaty of Waitangi</a> that have followed. </p>
<p>In capturing the imaginations of younger generations, like Perenara, unborn when the Waitangi Tribunal began hearing its historical claims, Ihumātao has the potential to destabilise the investigation and settlement of historical grievances. It could also challenge the painfully constructed post-settlement organisations which represent iwi (Māori tribes) with both central and local government. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/290419/original/file-20190902-165985-asy4va.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/290419/original/file-20190902-165985-asy4va.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/290419/original/file-20190902-165985-asy4va.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/290419/original/file-20190902-165985-asy4va.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/290419/original/file-20190902-165985-asy4va.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/290419/original/file-20190902-165985-asy4va.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/290419/original/file-20190902-165985-asy4va.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The main aim of the land occupation at Ihumātao is to stop a housing development.</span>
<span class="attribution"><span class="source">Alika Wells/Wikimedia</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<h2>Historic grievances</h2>
<p>Treaty settlements acknowledge historical claims and the payment of some compensation has enhanced iwi commercial and cultural development throughout the country, including for <a href="https://www.waikatotainui.com/">Waikato Tainui</a>. But for iwi of the Manukau, it has done little to resolve their long-held grievances. </p>
<p>The Waitangi Tribunal came to Makaurau marae (meeting place) at Ihumātao in 1984, eight years before Perenara was born. At the time, it had no jurisdiction to look at claims prior to 1975, when the tribunal had been established. But in its investigation of what happened to Ihumātao, and those neighbouring Māori communities, it could not avoid the sorry history of warfare, confiscation and the desecration of sacred sites, while focusing on the increasing impact of pollution and development on the iwi’s land and marine resources. </p>
<p>The investigation of the <a href="https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_68495207/The%20Manukau%20Report%201985.pdf">Manukau claims</a> provided one of the most persuasive arguments that the tribunal’s powers needed to be expanded back to 1840, the year the Treaty of Waitangi was signed, to include a review of New Zealand’s entire history of colonisation. But 35 years later, the Ihumātua claims remain unsettled and the tribunal has never returned.</p>
<h2>Treaty settlements and Ihimātao</h2>
<p>In 1995, the <a href="https://nzhistory.govt.nz/politics/treaty/the-treaty-in-practice/waikato-tainuibegan">Tainui Raupatu settlement</a> began an era of treaty settlements. The settlement provided financial redress for confiscation claims, including those of South Auckland iwi. It also aimed to be full and final, to prevent Māori from raising these issues again in seeking further redress. </p>
<p>In return, treaty settlements provided for the establishment of new Māori authorities. These would represent claimants in the future, and would form the basis for a new relationship with the Crown, beginning what the Crown has claimed would be genuine treaty-based partnerships. </p>
<p>While many of the iwi of South Auckland were and remain strongly associated with Waikato Tainui and the Kīngitanga, the Māori King movement, they have also been negotiating subsequent settlements. Some, like <a href="https://www.govt.nz/treaty-settlement-documents/te-kawerau-a-maki/">Te Kawerau ā Maki</a> and <a href="https://www.govt.nz/treaty-settlement-documents/ngati-tamaoho/">Ngāti Tamaoho</a>, have been completed, but others, including <a href="https://www.govt.nz/treaty-settlement-documents/te-akitai-waiohua/">Te Akitai Waiohua</a>, are still somewhere in the queue.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-kingitanga-movement-160-years-of-maori-monarchy-102029">The kīngitanga movement: 160 years of Māori monarchy</a>
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</em>
</p>
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<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/290415/original/file-20190902-165997-1dtryhb.jpg?ixlib=rb-1.1.0&rect=38%2C100%2C5137%2C3344&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/290415/original/file-20190902-165997-1dtryhb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/290415/original/file-20190902-165997-1dtryhb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/290415/original/file-20190902-165997-1dtryhb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/290415/original/file-20190902-165997-1dtryhb.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/290415/original/file-20190902-165997-1dtryhb.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/290415/original/file-20190902-165997-1dtryhb.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Ihumātao has attracted wide public support.</span>
<span class="attribution"><span class="source">Alika Wells/Wikimedia</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>The whole settlement process relies on a policy established in the early 1990s, when Perenara was but a toddler. The policy is locked into the assumptions about Māori and the Crown and the role of the state that dominated the period of <a href="https://en.wikipedia.org/wiki/Rogernomics">state restructuring from 1984 to 1993</a>. </p>
<p>The government established a cap of NZ$1 billion for all <a href="https://www.bwb.co.nz/books/treaty-of-waitangi-settlements">treaty settlements</a>. Each iwi negotiates a package of financial and cultural redress, but the financial redress is driven by a set of relativities established at the time. This determined that Tainui as a whole got NZ$170 million for raupatu (confiscation) claims and Te Akitai Waiohua Agreement in Principle entitles them to NZ$9 million for the settlement of their remaining claims, including Ihumātao. </p>
<p>Treaty settlements today rest on once highly unpopular policies, determined by largely forgotten politicians a generation ago. Innovations such as recognising the legal personality of <a href="https://thespinoff.co.nz/atea/atea-otago/27-11-2017/if-the-hills-could-sue-jacinta-ruru-on-legal-personality-and-a-maori-worldview/">Te Urewera</a> and the <a href="https://www.nationalgeographic.com/culture/2019/04/maori-river-in-new-zealand-is-a-legal-person/">Whanganui River</a> have been welcomed by many Māori. However, there is also disquiet over the <a href="https://vup.victoria.ac.nz/new-treaty-new-tradition/">impact of treaty settlements on iwi</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/three-rivers-are-now-legally-people-but-thats-just-the-start-of-looking-after-them-74983">Three rivers are now legally people – but that's just the start of looking after them</a>
</strong>
</em>
</p>
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<h2>Todays’s protests, yesterday’s treaty settlements</h2>
<p>The Ihumātao protest began in 2016, but only gained momentum in the popular imagination after all legal remedies were exhausted and the <a href="https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12252194">police were called in</a>. If a new generation, long separate from those who led the claims in the 1980s, choose direct action and successfully bring the Crown to the negotiating table, then the message is clear. Protest works because patiently sitting in line does not. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/290421/original/file-20190902-165989-11hwsgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/290421/original/file-20190902-165989-11hwsgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/290421/original/file-20190902-165989-11hwsgs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/290421/original/file-20190902-165989-11hwsgs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/290421/original/file-20190902-165989-11hwsgs.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/290421/original/file-20190902-165989-11hwsgs.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/290421/original/file-20190902-165989-11hwsgs.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Awareness of the land occupation increased after police were brought in.</span>
<span class="attribution"><span class="source">Wikimedia</span>, <a class="license" href="http://creativecommons.org/licenses/by-sa/4.0/">CC BY-SA</a></span>
</figcaption>
</figure>
<p>It is possible that this whole protest can be separated from historic treaty claims, without reopening existing settlements or upsetting relativities between settlements. SOUL are very careful to limit the protest to the stonefields and to halting a housing development. </p>
<p>Extracting Ihumātao from broader grievances would still be difficult, as the Waitangi Tribunal found in 1984. If the protest can be contained as limited to preserving historic landscapes for future generations, Māori and non-Māori, an agreement could be reached that remains technically outside of Treaty of Waitangi claims and settlements. </p>
<p>To use Crown money to purchase private land, to resolve a treaty grievance, would have flow-on effects throughout the country. One solution already suggested, for the Crown to provide <a href="https://www.rnz.co.nz/news/te-manu-korihi/397328/there-is-no-deal-waikato-tainui-leader">Tainui Waikato the funding to purchase the land</a> in the name of King Tuheitia, would provide an effective solution, outside of the treaty settlement process and through a recognised iwi entity. </p>
<h2>Challenging times for Māori and Crown</h2>
<p>It is not just the Crown who needs to tread carefully. If the Crown was to negotiate with SOUL, come to a settlement which involved public expenditure to purchase land from its current owners, <a href="https://fletcherbuilding.com/">Fletcher Building</a>, then it would give legitimacy to any Māori group attempting to undermine and reverse the decisions of Crown recognised tribal authorities. </p>
<p>Even in negotiating with SOUL, the Crown would be seen as ignoring an agreement between Fletcher Building and one of its Crown recognised treaty settlement entities, the Te Kawerau ā Maki Trust, even though Te Kawerau ā Maki’s relationship with Ihimatāo is more recent and personal than based on customary interests. </p>
<p>All of this is occurring at a time when Crown/Māori relationships appear to be in crisis. Major questions are being asked about the ministry for children <a href="https://www.orangatamariki.govt.nz/">Oranga Tamariki</a>, the justice system’s treatment of Māori prisoners, Māori mental health and the treatment of <a href="https://www.orangatamariki.govt.nz/about-us/royal-commission-of-inquiry/">Māori children in care in the past</a>. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/racism-alleged-as-indigenous-children-taken-from-families-even-though-state-care-often-fails-them-116984">Racism alleged as Indigenous children taken from families – even though state care often fails them</a>
</strong>
</em>
</p>
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<p>In all of this, leading Māori authorities created out of treaty settlements have the capacity to provide kaupapa Māori (by Māori for Māori) services in the interests of hapū (sub-tribes) and whānau (family). There is a significant risk that if government is not seen to be acting responsibly and quickly, not only to resolve Ihumātoa but also these broader issues of disadvantage, the structures created by treaty settlements could be under threat. </p>
<p>However much treaty settlements can pretend to be full and final, to put history behind us, this objective has been a notable failure almost everywhere in this country’s past. New generations demand their own way of confronting and reimagining the past and in negotiating in the present. They will not be bound by those before them.</p><img src="https://counter.theconversation.com/content/122548/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Michael Belgrave does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The land occupation at Ihumātao, near Auckland’s airport, is reviving forms of protest common in the 1970s, now enhanced by new media and led by a new generation of Māorikeen to see grievances addressed.Michael Belgrave, Professor History, Massey UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1109822019-02-05T19:06:37Z2019-02-05T19:06:37ZExplainer: the significance of the Treaty of Waitangi<figure><img src="https://images.theconversation.com/files/256778/original/file-20190201-103164-144o658.jpg?ixlib=rb-1.1.0&rect=51%2C34%2C2810%2C1504&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">On February 6, 1840, representatives of the British Crown and Māori chiefs acting on behalf of their tribes signed the Treaty of Waitangi.</span> <span class="attribution"><span class="source">from Wikimedia Commons</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p>The Treaty of Waitangi is New Zealand’s foundation document. On February 6, 1840, the treaty was signed by representatives of the British Crown and Māori chiefs who acted on behalf of their hapū (sub-tribes). </p>
<p>Māori are indigenous to New Zealand, with historical ties and common narratives extending to Polynesia. The signing of the treaty confirmed formal European settlement in New Zealand. But debate and confusion have continued ever since regarding the exact meaning of the treaty text.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/new-zealands-indigenous-reconciliation-efforts-show-having-a-treaty-isnt-enough-49890">New Zealand's indigenous reconciliation efforts show having a treaty isn't enough</a>
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<h2>Nuance in translation</h2>
<p>The debate stems from the fact that the parties involved in its signing, namely the rangatira (chiefs) and New Zealand’s first governor <a href="https://nzhistory.govt.nz/people/william-hobson">William Hobson</a> on behalf of the British Crown, had different understandings and expectations as to what they had signed and what authority they would exercise. </p>
<p>There are two accepted versions of the Treaty of Waitangi: a Māori text known as Te Tiriti o Waitangi and the English version hereon called the Treaty of Waitangi. Under law both are accepted as the Treaty of Waitangi, but they are <a href="https://nzhistory.govt.nz/files/documents/treaty-kawharu-footnotes.pdf">significantly different in meaning</a>. </p>
<p>Te Tiriti speaks of the chiefs maintaining their tino rangatiratanga (authority) over their taonga (all that they hold precious, including the Māori language). The chiefs allow the Queen to have kāwanatanga, a nominal and delegated authority so that she can control her people. On the other hand, the treaty in English tells us that the chiefs ceded their sovereignty to the crown while retaining full, exclusive and undisturbed possession over their lands, estates, forests and fisheries. </p>
<h2>A matter of interpretation</h2>
<p>Given that at the time of the signing, the dominant language was Te Reo Māori and the majority of the discussions would have been conducted orally, the Māori text of Te Tiriti reflects the intentions of the chiefs. It is a critical reference point in informing our understandings, reinforced by the <a href="https://www.ashurst.com/en/news-and-insights/legal-updates/exclusion-clauses-and-the-limitation-of-the-contra-proferentem-principle/">international convention of contra proferentem</a> in relation to treaty making. This rule in contract law states that any clause considered to be ambiguous should be interpreted against the interests of the party that requested the clause to be included.</p>
<p><a href="https://www.stuff.co.nz/national/108428146/national-portrait-dame-claudia-orange-treaty-witness">Claudia Orange</a>, generally considered the most authoritative Pākehā (non-Māori) <a href="https://books.google.co.nz/books/about/The_Story_of_a_Treaty.html?id=9_Z3VI9gcqQC&redir_esc=y">historian on the treaty</a>, states:</p>
<blockquote>
<p>The treaty was presented in a manner calculated to secure Māori agreement. The transfer of power to the Crown was thus played down. </p>
</blockquote>
<p>Bear in mind also that the <a href="https://nzhistory.govt.nz/media/interactive/the-declaration-of-independence">Declaration of Independence</a>, the forerunner to Te Tiriti/Treaty, signed in 1835, had affirmed the authority chiefs already had. This meant they held mana and rangatiratanga (all power and sovereign authority). This system of political authority had been in place for many centuries. </p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/257316/original/file-20190205-86210-1shx1nt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/257316/original/file-20190205-86210-1shx1nt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=356&fit=crop&dpr=1 600w, https://images.theconversation.com/files/257316/original/file-20190205-86210-1shx1nt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=356&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/257316/original/file-20190205-86210-1shx1nt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=356&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/257316/original/file-20190205-86210-1shx1nt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=447&fit=crop&dpr=1 754w, https://images.theconversation.com/files/257316/original/file-20190205-86210-1shx1nt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=447&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/257316/original/file-20190205-86210-1shx1nt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=447&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The Governor General of New Zealand, Dame Patsy Reddy, during a welcome ceremony to the treaty grounds at Waitangi.</span>
<span class="attribution"><span class="source">Eileen Cameron</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span>
</figcaption>
</figure>
<h2>Legal status of the treaty</h2>
<p>Fast forward to 2019 and what has been happening in the landscape of treaty jurisdiction. During and after the cumulative impact of introduced legislation and policies which led to systemic colonisation, consistent and unwavering Māori protests at violations of both treaties eventually led to the introduction of the <a href="http://www.legislation.govt.nz/act/public/1975/0114/107.0/DLM435368.html">1975 Treaty of Waitangi Act</a> and its 1985 amendment.</p>
<p>This gave us the <a href="https://www.waitangitribunal.govt.nz/">Waitangi Tribunal</a>, which allows for a process to hear claims about breaches of the treaty, typically the taking of land and resources from Māori. The tribunal found in 2014 that <a href="https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_85648980/Te%20RakiW_1.pdf">Maori did not cede their sovereignty</a> in Te Tiriti o Waitangi. It also introduced a set of principles which embodied the intention of both treaties in an attempt to mediate the differences in the two versions.</p>
<p>A series of judgements and mandates by the courts and the Waitangi Tribunal also ruled that the Crown has the right to govern (kāwanatanga), subject to the protection of Māori interests (rangatiratanga). This position is <a href="https://mebooks.co.nz/politics-and-social-issues/ngapuhi-speaks-ebook">not accepted by many Māori</a> who will continue to <a href="http://www.stuff.co.nz/auckland/local-news/northland/8076281/Ngapuhi-role-in-Treaty-examined">advocate for the supremacy of rangatiratanga</a> over kāwanatanga. </p>
<p>In his <a href="https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1429905">book about the treaty’s place in New Zealand law and constitution</a>, Mathew Palmer notes:</p>
<blockquote>
<p>The Waitangi Tribunal developed the core of an interpretation of the meaning of the treaty that could and should be applied in contemporary New Zealand. This was a forward-looking constructive approach to enhancing relationships between the Crown and Māori.</p>
</blockquote>
<p>A long-standing education campaign about the Treaty of Waitangi has also helped non-indigenous New Zealanders to <a href="https://www.tandfonline.com/doi/abs/10.1080/2201473X.2011.10648812">appreciate the significance of the treaty relationship</a>.</p>
<h2>Treaty settlements</h2>
<p>Most discussions on the principles of the Treaty of Waitangi generally include the following:</p>
<ul>
<li>duty to act in good faith, reasonably and/or honourably</li>
<li>principle of partnership</li>
<li>principle of protection or active protection.</li>
</ul>
<p>New Zealand’s constitution demands that robust public policy gives expression to the principles of the Treaty of Waitangi. This has led to the redesign of Crown agencies which must now be culturally responsive to the aspirations of Māori and actively innovate solutions to reduce the <a href="http://www.rangahau.co.nz/assets/decades_disparity/disparities_report3.pdf">glaring social disparities where Māori are disproportionately represented</a>. </p>
<p>The Waitangi Tribunal has <a href="https://www.parliament.nz/en/pb/research-papers/document/00PlibC5191/historical-treaty-settlements">heard and settled 54 treaty claims</a> since 1989, including financial redress of more than NZ$1.5 billion. The first settlement, in respect of the Waitomo Caves, involved the transfer of land and a loan. Settlements since then have included several elements of redress: a formal apology by the crown, financial and cultural redress, the transfer of or the option to purchase significant properties, and restoration of traditional geographical names. </p>
<p>Since the identity of hapū is rooted in their physical and spiritual relationship with the environment over hundreds of years, these forms of cultural redress acknowledge the tribe as the rightful guardians and their deep association with place. The process seeks to restore the sacred relationships compromised by colonisation.</p>
<p>The treaty settlement process has been the catalyst for significant economic growth for iwi (tribe) controlled assets and Māori enterprise. This naturally brings positive development to the New Zealand economy, encouraging iwi and Māori to continue to progress their advancement not only economically but socially, culturally and environmentally.</p><img src="https://counter.theconversation.com/content/110982/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sandra Morrison receives funding from the NZ Govnt Deep South Science Challenge; NZ Plant and Food
She is affiliated with International Council for Adult Education</span></em></p><p class="fine-print"><em><span>Ingrid L M Huygens is self-employed as a national Treaty educator, and is also national coordinator for the charitable organisastion Tangata Tiriti - Treaty People Incorporated. She is a member of Network Waitangi, which connects tauiwi who support Te Tiriti o Waitangi.. </span></em></p>The Treaty of Waitangi, signed in 1840, is New Zealand’s foundation document. But debate continues about the exact meaning of the treaty text.Sandra Morrison, Associate Professor, Faculty of Māori and Indigenous Studies, University of WaikatoIngrid L M Huygens, Treaty educator, Māori & Indigenous Studies, University of WaikatoLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1021922018-08-29T20:11:25Z2018-08-29T20:11:25ZPlanned closures of charter schools in New Zealand prompt debate about Māori self-determination<figure><img src="https://images.theconversation.com/files/233744/original/file-20180828-75978-1ib3zuf.jpg?ixlib=rb-1.1.0&rect=100%2C147%2C4997%2C2677&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">The New Zealand government's decision to close charter schools has prompted criticism from Māori leaders because some of the schools have predominantly Māori rolls.</span> <span class="attribution"><span class="source">from www.shutterstock.com</span>, <a class="license" href="http://creativecommons.org/licenses/by-nd/4.0/">CC BY-ND</a></span></figcaption></figure><p>The New Zealand government’s move to <a href="https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11990549">close charter schools</a> as part of its education reform has prompted strong Māori criticism. </p>
<p>Māori educators Sir Toby Curtis and Dame Iritana Tawhiwhirangi have filed a <a href="http://etipuerea.org/wp-content/uploads/TNH-102641-2-1-10-Statement-of-Claim-Final.pdf">Waitangi Tribunal claim</a>, arguing that the failure to involve Māori, and consider Māori interests, breaches the Crown’s obligations under the <a href="https://teara.govt.nz/en/document/4216/the-three-articles-of-the-treaty-of-waitangi">Treaty of Waitangi</a>. They say that the school closures would disproportionately affect Māori. Six of the 11 charter schools have predominantly Māori rolls.</p>
<p>The debate is bigger than public versus private education, which is how the government sees it. It is more a matter of the meaning of Māori citizenship, and whether citizenship has evolved from the subjecthood Māori were granted under the treaty in 1840.</p>
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<strong>
Read more:
<a href="https://theconversation.com/strong-sense-of-cultural-identity-drives-boom-in-maori-business-87500">Strong sense of cultural identity drives boom in Māori business</a>
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<h2>State funded, Māori controlled</h2>
<p>In 2013, the government established <a href="https://www.isnz.org.nz/content/charter-schools-ministers-announce-framework-partnership-schoolskura-hourua">charter schools, or kura hourua</a>. They are state funded, but privately owned and operated. Designed to have greater flexibility over the curriculum and employment of teachers, they are expected to encourage innovation and provide opportunities for people not traditionally well served by the public education system. </p>
<p>Charter schools were a condition of the small libertarian <a href="http://act.org.nz/">ACT party</a>’s <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=2ahUKEwiilf-5tozdAhVGEHAKHZETBz0QFjABegQICRAC&url=https%3A%2F%2Fwww.parliament.nz%2Fresource%2F0000178717&usg=AOvVaw1CM4HMxl25RcHbeRtxxAtH">confidence and supply agreement</a> with the National-led government. <a href="https://www.ppta.org.nz/dmsdocument/207">Critics insisted that kura hourua</a> reflected an ideological preference for the privatisation of education. </p>
<p>They saw the argument that kura hourua might provide better opportunities for the Ministry of Education’s <a href="http://nzcurriculum.tki.org.nz/Priority-learners">priority learners</a> (mostly Māori and Pacific Island people from schools serving socio-economically disadvantaged communities) as an argument of convenience. The solution was better investment in public education.</p>
<p>Furthermore, critics argued the public system already had the capacity to support <a href="https://www.education.govt.nz/school/running-a-school/school-structures-and-governance/">designated character schools</a> for those wanting a more distinctive education.</p>
<h2>Public schooling goals vs achievements</h2>
<p>The closure of charter schools was an <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwifqbvquIzdAhWOa94KHYvABSoQFjAAegQIAhAB&url=https%3A%2F%2Fwww.chrishipkins.org.nz%2Fcharter_schools_will_go_under_labour&usg=AOvVaw35nnghdpvxhq-Ptma8VZJo">election promise</a> of the Labour Party. Yet, the party was divided and its Māori members held strongly that kura houora were <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=5&cad=rja&uact=8&ved=2ahUKEwiI2Z-iuYzdAhUBUN4KHSajBFgQFjAEegQIBhAB&url=https%3A%2F%2Fwww.radionz.co.nz%2Fnews%2Fpolitical%2F335647%2Fdavis-threatens-to-resign-if-two-charter-schools-closed-down&usg=AOvVaw3j4ck_UteWsYJGfUOQbQgr">expressions of Māori self-determination</a>. </p>
<p>They saw the schools as a way of giving Māori greater capacity to work outside the system and to define educational success. It was a contentious decision for the Ardern government to confirm its pre-election commitment and introduce <a href="https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=11990549">legislation to end charter schools</a>. </p>
<p>Education minister Chris Hipkins appealed to what <a href="https://www.newshub.co.nz/home/politics/2018/07/maori-leader-claims-govt-bullying-charter-schools-urges-pm-to-show-aroha.html">public schooling should achieve</a>, saying:</p>
<blockquote>
<p>We think all Māori students, regardless of what school they go to, are entitled to a quality education, and Māori students shouldn’t be forced to leave the public education system and go to private schools in order to have the quality of education that they deserve.</p>
</blockquote>
<p>For those familiar with how <a href="https://www.maoritelevision.com/news/education/study-shows-teacher-bias-leads-maori-student-failure">public schooling fails Māori</a>, this was a deep affront to self-determination. </p>
<h2>The Maori citizen</h2>
<p>There is a significant philosophical clash between <a href="https://books.google.com.au/books?id=-M1CAQAACAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false">universal citizenship and differentiated citizenship</a>. Universal citizenship suggests a public obligation to provide equally effective schooling to everybody. Differentiated citizenship pursues equality for Māori citizens through self-determination - the right to make independent decisions about what schooling should achieve and why. </p>
<p>The question of what it means to be a Māori citizen stands behind the <a href="http://etipuerea.org/wp-content/uploads/TNH-102641-2-1-10-Statement-of-Claim-Final.pdf">tribunal claim</a> that the Crown’s actions breach the treaty’s established principles of partnership, active protection and reciprocity. </p>
<p>Kura hourua have had <a href="https://www.educationcounts.govt.nz/publications/schooling/innovations-in-partnership-schools-kura-hourua">mixed success</a>. But as Curtis and Tawhiwhirangi have told the tribunal, their students have, overall, achieved to a higher level than priority learners in state schools. There have been cases of comparatively outstanding outcomes. </p>
<p>Significantly, the tribunal has previously found that the Crown has distinctive <a href="https://www.waitangitribunal.govt.nz/news/the-aotearoa-institute-claim-concerning-te-wananga-o-aotearoa-report-2/">educational obligations to Māori</a>. Curtis and Tawhiwhirangi <a href="http://etipuerea.org/wp-content/uploads/TNH-102641-2-1-10-Statement-of-Claim-Final.pdf">argue in their claim</a> that the Crown must govern with a “fully informed understanding of and respect for the Māori interest”. They say that a further breach is the failure “to provide alternatives which make appropriate provision for the needs of Māori”. </p>
<p>The Crown’s intention to provide for those needs is not the same as actually doing so. Aspiring to the equal consideration of all citizens is morally important, but achieving that equality is a more complex, contested and culturally contextualised process. Māori are, after all, entitled to public policy that works.</p>
<h2>From subject to citizen and the right to self-determination</h2>
<p>Māori schooling has progressed significantly from its early to mid-20th century goal of <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=2ahUKEwix39PUu4zdAhULfd4KHV5WBFMQFjACegQIBxAB&url=https%3A%2F%2Fteara.govt.nz%2Fen%2Fmaori-education-matauranga%2Fpage-2&usg=AOvVaw344XjD4HdbqLzPvGqe8RZt">assimilating Māori</a> into the low-skilled Pākehā (European New Zealanders) working class. The contemporary economy requires that all citizens contribute to their full capacity. </p>
<p>However, in this context there is still a Māori desire “<a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjUmZyhvIzdAhVNa94KHf9PArMQFjAAegQIABAB&url=https%3A%2F%2Fwww.nzcer.org.nz%2Fnzcerpress%2Fscaling-education-reform-addressing-politics-disparity&usg=AOvVaw1Rk2sPO2JyqRQcm5yhbOWm">to achieve as Māori</a>” and for the state to step back. Curtis and Tawhiwhirangi make this claim with reference to the Treaty of Waitangi. It can also be made with reference to the United Nations <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&cad=rja&uact=8&ved=2ahUKEwiBzqXIvIzdAhVKPHAKHczrBCIQFjACegQICBAC&url=http%3A%2F%2Fwww.un.org%2Fesa%2Fsocdev%2Funpfii%2Fdocuments%2FDRIPS_en.pdf&usg=AOvVaw2GK6XE6j77rXccT_O6eJHF">Declaration on the Rights of Indigenous Peoples</a>:</p>
<blockquote>
<p>Indigenous peoples have the right to establish and control their educational systems and institutions … in a manner appropriate to their cultural methods of teaching and learning.</p>
</blockquote>
<p>The policy questions New Zealand encounters are bigger still than charter schools. They should be thought about in the context of what it means to be a Māori citizen of the modern liberal state.</p><img src="https://counter.theconversation.com/content/102192/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Dominic O'Sullivan does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The New Zealand government’s move to close charter schools as part of its education reform has prompted strong Māori criticism.Dominic O'Sullivan, Associate Professor of Political Science, Charles Sturt UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/498902016-05-11T20:10:04Z2016-05-11T20:10:04ZNew Zealand’s indigenous reconciliation efforts show having a treaty isn’t enough<p><em>Australia is being held back by its unresolved relationship with its Indigenous population. Drawing on attempts at reconciliation overseas, <a href="https://theconversation.com/au/topics/indigenous-reconciliation">this series explores different ways of addressing this unfinished business</a>. Today, lessons from New Zealand.</em></p>
<hr>
<p>The relationship between Māori and the British Crown (which delegated its authority to the New Zealand government) has historically been filled with broken promises. Māori reached their nadir at the turn of the 20th century when their population had fallen to half of what it was at first contact.</p>
<p>Ever since the 1840 signing of the <a href="http://www.teara.govt.nz/en/treaty-of-waitangi">Treaty of Waitangi</a> (New Zealand’s founding document), a raft of government initiatives have resulted in Māori losing both resources and power. To tackle grievances stemming from these actions, reconciliation efforts were established in the country 30 years ago. </p>
<p>These efforts generally fall within three mechanisms: the Treaty of Waitangi settlement process; the Office of the Race Relations Conciliator; and public education platforms. </p>
<h2>Treaty settlements</h2>
<p>The Treaty of Waitangi contains three articles which recognise Māori retaining their mana (authority) and allow the British Crown to govern its own people; protect Māori resources and culture; and require Māori to enjoy equal rights with British citizens. </p>
<p>Despite all this, acts by both the British Crown and successive New Zealand governments have had detrimental effects on Māori. These span the loss of lives to the taking of land through various measures, with Māori becoming culturally and economically bereft within their own lands.</p>
<p>But there is recourse. The New Zealand government established a forum to hear treaty-based grievances, known as <a href="http://bwb.co.nz/books/the-waitangi-tribunal">the Waitangi Tribunal</a>, in 1975. The current framework for settling historical grievances focuses on the restitution of Article II rights: the taking of resources including land and the absence of protective measures regarding Māori culture. </p>
<p>According to the <a href="http://www.ots.govt.nz/">Office of Treaty Settlements</a>, the government entity responsible for negotiating agreements with iwi (tribes), 51 claims were settled between 1990 and 2014; three others dealt specifically with resources rather than being solely iwi-based; and another 35 are at various stages. </p>
<p>Each settlement contains financial and commercial redress, cultural redress and an apology for the offending acts.</p>
<p>The process is often criticised for being dependent on the government determining parameters of the settlement framework, and on the basis that settlements don’t necessarily equate to actual losses suffered by the iwi. Despite the iwi Ngai Tahu settling for NZ$170 million, for instance, the actual economic loss the tribe suffered is estimated at NZ$20 billion. </p>
<p>But it’s had positive outcomes too: the creation of <a href="http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=11285705">an increasingly powerful Māori economy</a>, with iwi such as Tainui and Ngai Tāhu estimated to be worth NZ$1 billion in assets. Both iwi have attributed their success to property investment. </p>
<p>Crown apologies are received differently by various iwi. Some believe they aren’t important, while others consider an apology to be a significant part of the process that allows both parties to move forward.</p>
<h2>The conciliator, the media and education</h2>
<p>The Office of the Race Relations Conciliator was <a href="https://www.hrc.co.nz/your-rights/race-relations-and-diversity/">formed under the Race Relations Act 1971</a> and releases reports that serve as educational resources for the public. Its purpose is to “work to promote positive race relations”. </p>
<p>The office has dealt with a number of complaints that have generated national publicity. An example is the <a href="http://www.teara.govt.nz/en/nga-ropu-tautohetohe-maori-protest-movements/page-5">1979 He Taua incident</a>, when a Māori protest group confronted Auckland engineering students who mocked the haka.</p>
<p>But the most influential educational platform for indigenous reconciliation in New Zealand is the media, which have experienced something of a transformation since the 1990s. This reflects, to some extent, the growing awareness of treaty and Māori issues. </p>
<p>Trends that were commonplace in the media 30 years ago – such as the dearth of Māori broadcasters; poor pronunciation of Māori names and words; and, at times, racist reporting of stories involving Māori – are now largely absent. </p>
<p>This transformation also includes programming that focuses on Māori; <a href="https://www.upress.umn.edu/book-division/books/the-fourth-eye">Māori language being televised</a> by the main state broadcasting network; and <a href="https://search.informit.com.au/documentSummary;dn=903965060557953;res=IELAPA">the establishment of Māori Television</a> in 2004.</p>
<p>Other public education platforms involve treaty educators, the education system and public education initiatives. Treaty educators, who are invited to present to communities or organisations on a largely voluntary basis, run workshops and produce multiple resources. </p>
<p>The public education system teaches material regarding Māori and the Waitangi Treaty, and also has readily available resources. It does all this despite the treaty <a href="http://nzcurriculum.tki.org.nz/Principles/Treaty-of-Waitangi">not being a compulsory educational component or course</a>, although the national curriculum:</p>
<blockquote>
<p>… acknowledges the principles of the Treaty of Waitangi, and the bicultural foundations of Aotearoa New Zealand. </p>
</blockquote>
<p>In effect, public education initiatives have tended to fluctuate. And efforts over time have coincided with nationwide events and political policies, such as the 1990 sesquicentenary celebrations of the signing of the Waitangi Treaty, or the release of the 1995 Fiscal Envelope (the government policy to settle historical grievances).</p>
<h1>Lessons for other countries</h1>
<p>Lessons that other countries can learn from New Zealand’s experience of reconciliation is for indigenous people and governments to have a genuine and robust discussion at the outset of any attempt to resolve grievances. </p>
<p>The government established both the Waitangi Tribunal and the Fiscal Envelope with little or tokenistic consultation with Māori. An approach like this can result in recurring accusations of unfairness because one party clearly has more power when equality is needed for fair and enduring settlements. </p>
<p>Along with efforts to address the past that are satisfactory to both indigenous people and the government, there is the need to better educate the wider public. The New Zealand education system was monocultural for a long time, teaching all that was great about the British Empire with little or no attention to the poor treatment Māori had received. </p>
<p>This resulted in the majority of New Zealand citizens believing that race relations between Māori and the Crown had historically been harmonious, when that was clearly not the case. </p>
<p>Finally, a forum is needed where race issues can be raised and discussed in a mature and sensitive fashion. New Zealand has the Race Relations Conciliator, but that office has been criticised in the past for not having enough legislative clout to impose penalties. </p>
<p>Real progress toward indigenous reconciliation requires fairness and equality. </p>
<hr>
<p><em>This is the second article in our <a href="https://theconversation.com/au/topics/indigenous-reconciliation">series on efforts towards indigenous reconciliation in settler countries around the world</a>. Look out for more snapshots of other countries’ progress in the coming days.</em></p><img src="https://counter.theconversation.com/content/49890/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Malcolm Mulholland does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Reconciliation efforts were established in New Zealand 30 years ago to tackle grievances stemming from government initiatives that have seen Māori lose both resources and power.Malcolm Mulholland, Senior Researcher in Maori Studies, Massey UniversityLicensed as Creative Commons – attribution, no derivatives.