Necessity or choice, Bill Oliver

Justice and Identity:  Antipodean Practices
Margaret Wilson and Anna Yeatman (eds)
Bridget Williams Books, $39.95,
ISBN 0 908912 60 9

Many of the essays in this book are written in what I have come to recognise as a post‑modernist manner. I did not count, but they are numerous, the occasions upon which something is said to be “privileged” which ought not to be and something else not “privileged” which ought to be. The first kind have a monocultural and the second a bicultural character ‑ that is, when they do not turn out to be, at least on Andrew Sharp’s reckoning, Maori monocultural wolves in bicultural sheep’s clothing. That I will return to. I will begin by adopting a post‑modernist manner and telling my readers where I am and where I come from. I am sitting at a work table by a window which admits a view of the harbour, some of it just visible through slits between tall corporate and government buildings. Much of the foreground is occupied by a block of flats once owned by the Ngai Tahu Trust Board and, according to report, sold by the board to Robert Jones Investments. Maybe, as it’s a matter of biculturalism, there’s a lesson in that.

This collection of essays arose from the problems experienced by the School of Law and the Department of Women’s Studies at the University of Waikato in attempting “to institutionalise a bicultural approach to academic curriculum, process and policy”. Those problems led to a series of seminars to examine their wider context ‑ “the Treaty of Waitangi, the concept, of partnership and the policy of biculturalism” and “issues of justice in relation to the contemporary politics of difference, mostly in contexts of white settler colonial dominance”.

Perhaps the book is a shade too devoted to “theoretical interventions in the contemporary politics of difference” and too little concerned with mere history.* The introduction conveys tantalising hints about the problems encountered by the editors in attempting a unilateral implementation of the university’s aim of developing “programmes and initiatives based on partnership between Maori and other New Zealand people”. It notes that not all departments were under pressure to develop a bicultural approach, that the university’s policymakers and managers lacked background and experience and that the institution did not offer solid support to the innovators. “There is a vicious circle here: the most powerful academic voices are those least able by training and inclination to respond imaginatively and intelligently to the issues posed by feminist, bicultural and multicultural demands on justice.” The book, then, takes its origin from an effort to introduce bicultural procedures within an institution affirming biculturalism but (it is suggested) not taking its affirmations seriously enough.

[* Rather more than half of the essays are devoted to such interventions, and of these three have no explicit reference to New Zealand. Of the three, it seems to me that only one, Iris Young’s, has local applicability. Paul Patton’s “Post-structuralism and the Mabo debate” leaves one wondering, perhaps unfairly, whether the significance of the Mabo case lies in the way it illustrates the theories of Derrida and Deleuze rather than in the way their theories may assist – if they do – in achieving an understanding of the case. Radhika Mohamram’s study of the conflict between Indian intellectuals at home and those of the diaspora is written in what many will find a truly formidable manner. This is a pity, she examines biculturalism less as a political programme and more as an inevitable and not at all unrewarding post‑colonial inheritance, a condition to which she applies the unfortunate word “hybidity”. But further than that I would not trust myself to go.]

Thus biculturalism is the frame within which the words of the title, justice and identity, do their work. Identity is explored as a function of cultural belonging and within that context (apart from some cross‑references to gender) in relation to ethnicity as the defining element of culture. Similarly, justice is examined as an aspect of cultural interaction ‑ of the relationships between the adherents of two (occasionally more than two) cultures which exist together in the same territory and the same polity.

That being so, it is a matter for regret that the nexus between individual identity and communal culture is hardly explored. True, Paul Spoonley attempts to do this in relation to pakeha. He cites David Pearson’s sensible comment that “pakeha” is a term for an abstract ethnic category, not for a self‑aware ethnic community, but goes on to claim that those who use it of themselves indicate their belief in “the equitable reorganisation of Aotearoa”. People who say they are pakeha in effect express a wish to put an end to their post‑colonial homelessness, their failure “to make an effective transition to the South Pacific” – a phrase quoted from Donna Awatere‑Huata. Because the word is a Maori name for the colonisers, “a central feature of being pakeha … [is] the need to acknowledge Maori as tangata whenua”. All this is intriguing enough, but rather arbitrary. It is also distinctly ambiguous. Spoonley seems to hover uncertainly between the descriptive and the prescriptive; it is not always clear whether he is describing what he sees or prescribing what he would like to see. I doubt if many of the people who apply it to themselves would accept the meaning he gives to the term.

No one, including the four Maori contributors, attempts to explore the relationship of Maori to what is considered to be their culture or to apply to their situation the distinction between an ethnic category and an ethnic community. Maori is not a simple term. Does it indicate those who can place themselves within a particular kind of descent line and who opt to consider themselves Maori and behave accordingly? But what of those who are unaware of, or at least do not activate, their descent lines and those who do not appear to opt for that identity, except perhaps when faced with a census schedule? Some of the matters which some of these writers take as read are in fact pretty complicated.

More than any other writer, Andrew Sharp looks at the ways in which a culture may be usefully thought about and at what it means to say that a person has the capacity to relate to two (or more) of them. He attempts to answer the “brutally fundamental question: is it good to be bicultural?” He examines the meanings given to the word by people who invite us to become bicultural. He finds two (not fully compatible) meanings and illustrates them both from J Ritchie’s Becoming Bicultural. First, in summary accounts designed to educate the monocultural cultures are presented as “self‑generated orders incommensurable with others” in which all the parts cohere interdependently. But, second, in living and breathing fact “cultures are leaky vessels, created, renewed and transformed in endless contact with others”; each is “an ensemble of complicated ways of living which people just happen to have, and to share”.

Sharp goes on to consider the two kinds of bicultural behaviour deriving from this distinction. Becoming a fully bicultural self by way of total immersion in the other culture may be either a matter of necessity or of choice. For Maori it is commonly an unavoidable necessity, a condition of survival, for pakeha it is typically a matter of choice. This is a harsh but historically unavoidable distinction. If it is a choice, then it cannot be required of individuals; it ceases to be a choice if they are not left free to shape their own lives within their own cultural context.

However, in a country in which intercultural contact is a permanent condition, especially but not exclusively between Maori and pakeha, it is beneficial for public order that “all the various cultural interests and points of view are … respectfully heard and negotiated”. This calls for the exercise of bicultural skills. It does not require of everybody an intimate and participatory knowledge of the other culture but it does make it desirable for many to “learn the shorthand”, to be familiar with the summary accounts. In this interaction people who have either been obliged or have chosen to be bicultural selves have a vital role as mediators. Respect for the other culture is the bottom line; that respect should be enshrined in public procedures designed to “hack out some space … in which the most serious disagreements can be aired”.

Thus the question is answered: Yes, it is good to be bicultural ‑ but for reasons which also apply to other kinds of intercultural interaction. Certainly, to Maori‑pakeha interactions; and so Maori‑pakeha bicultural arrangements take priority, but for the entirely pragmatic reason that they provide the most regular and frequent situations in which a bicultural approach is needed.

Biculturalism, then, is good, but for reasons which support multiculturalism, to the extent to which it is required. The alternative is to accord Maori culture a “special status within a biculture” and that would be to install a Maori “monocultural perspective” within public institutions and procedures. Certainly a Maori perspective will be invoked and heeded more often than others, but for straightforward demographic reasons. On this reasoning, exclusive reasons of a tangata whenua or a Treaty of Waitangi kind are simply demands for monocultural privilege. To concede to such demands would be to “require all pakeha to be Maori selves as well”, for if they were to be equipped to participate fully in public institutions and procedures all pakeha, not just those who make the choice, would be obliged to absorb a Maori perspective.

This way of looking at biculturalism will not earn Sharp any brownie points from people, pakeha as well as Maori, who see biculturalism in terms of Maori special status and who (though not in this book) subsume all other ethnic groups under the category of “tangata tiriti”, the people of the treaty, whose presence in this country is held to depend upon Maori consent given through the treaty. Still, Sharp’s conclusions might find a warmer welcome among pakeha to whom the summons to make themselves fully bicultural is unreasonable and the notion of special status unacceptable and (worse) unnecessary.

Another personal item of the “where I stand” kind might be relevant here. A good deal of my time is spend working with claimants to prepare submissions for the Waitangi Tribunal. The reservations noted at the end of the previous paragraph apply to me. I do not find them any impediment to being wholly committed to work of this kind. For while Sharp’s analysis is unsympathetic to special status arguments, they are not necessarily hostile to the kinds of political action which special status advocates undertake. To see how this may be the case, I will look at two essays, by Eddie Durie and by Brenda Tahi.

Much that Durie says is perfectly compatible with the second of Sharp’s two kinds of biculturalism. A knowledge of “the shorthand” is all that is called for when Durie contends that “adjudication, where cultural values are in competition, requires at least a bicultural understanding” in such courts of law as the Planning Tribunal and the Family Court. When he writes of the Waitangi Tribunal’s ability to “offer a bicultural perspective” he indicates the mediatorial role of fully bicultural selves; the tribunal itself and its staff include people with that capacity. But Durie arrives at these conclusions by a “special status” route. Maori are “a people with constitutional status arising from prior occupancy” (a doctrine of little comfort to my Celtic forebears); Maori customary law “has been here since time immemorial” (an unexpected echo of seventeenth-century constitutional arguments between King and Parliament); annexation to the British Crown in 1840 brought a “sovereignty that in turn depended for its validity on the Treaty of Waitangi” ‑ surely a lawyer must mean legal validity? Can that be so? Many, it may be, will be as pleased as I am that the case for justice, which Durie so eloquently states, does not depend upon such fragile history.

Brenda Tahi describes the work of a Maori unit, Te Ohu Whatatupu, within the Ministry of Women’s Affairs, a group making up about one‑third of the Ministry staff. “Most of us,” she begins, “understand it [biculturalism] has something to do with being able to understand and use, but not necessarily adopt, the concepts, customs and practices of a culture other than one’s own.” This is a matter of learning “the shorthand”, a biculturalism a good deal less than total immersion in the other culture. But she goes on to call for something more ‑ thorough absorption by pakeha of “the concepts, customs and practices” of Maori. She writes of a “Maori‑pakeha spectrum”, notes that Maori are moving more and more towards “the Maori end” and that pakeha also need to make a huge overall shift in the Maori direction” ‑ that is, away from their own culture and towards another.

But if Maori are called upon to become more Maori and pakeha less pakeha, is this not Maori monoculturalism? Tahi’s description of the functions of Te Ohu Whatatupu supports this conclusion. It has two functions: (a) those specific to Maori women and (b) those monitoring the general work of the ministry from a Maori point of view. This is described as “permeating biculturalism throughout the organisation”. Just how monocultural this is may be seen by supposing that a pakeha group within the ministry (a) looked after matters specific to pakeha women and (b) monitored the general work of the ministry from a pakeha point of view.

This is not a criticism of the work the ministry does but of the reasons here advanced for doing it. There are good (and to my mind better) reasons for doing pretty much what Tahi describes ‑ that in sober socioeconomic fact Maori women have particular problems that call for particular attention. But such considerations would call for a biculturalism of the “shorthand” kind, not for one that amounts to pakeha cultural surrender.

Tahi is concerned with procedures and so are a number of other writers. Sharp wrote of the need to “hack out some space” in which serious differences could be “aired”. That is a rather unemphatic way of putting it; others pursue the search for procedures more energetically, though not always with encouraging results.

Kaye Turner at least looks that way in her examination of the 1988 April Report of the Royal Commission on Social Policy, though she is more intent upon criticising the commission for failing to make concrete proposals than to make specific suggestions herself. Her silence might have inclined her to be less astringent for it is a more formidable task than she appears to be ready to allow. One cannot but agree with her in seeking to discover ‘whether there are ways in which complex relationships can be realised in the institutions and processes of public, political life…” But one can hardly rest content with an answer which does no more than point to a need to develop “a bifurcated identity politics within a nation state”. Well, yes.

Iris Young goes a good deal further into this problem, one she identifies as that of devising democratic processes which do not “begin with shared understandings or take a common good as their goal”. As well as the usual majority rule forms of democratic practice, she rejects theories of “deliberative” democracy designed to eliminate the disenfranchisement of minorities. Even such deliberative procedures assume that the differing parties begin from a shared standpoint and aim at a shared goal. Their mode is argument and argument is not “culturally neutral and universal”. Deliberative democracy “privileges those who like arguments and know the rules of the game”.

At about this point I realised that I was reading something close to a description of the proceedings of the Waitangi Tribunal. Claimants are required to adopt argumentative modes of a patently “western” provenance. To do so they have to hire lawyers and historians to play obviously culture‑specific legal and historical games. Young recommends other forms of discourse to express ‘the possibility of communication across wide differences of culture and social position’. They are: greeting (“preliminaries in which the parties establish trust and respect”), rhetoric (“persuasion is partly seduction”) and storytelling (“narrative exhibits subjective experience to other subjects”).

There is a good deal of all three in tribunal proceedings, largely on the claimant side ‑ though the Crown has its kaumatua to look after at least the greetings. The tribunal, in spite of these habits, remains pretty much a “western” institution. The fault, if it is one, does not lie with the tribunal’s aspirations but more with the context in which the state has decided it shall operate, one shaped by legal procedures and historical research. Its situation suggests a dimension which Young does not consider: who sets the rules governing cultural interaction? Who is the political superior? Who (dare we say it) is the sovereign?

This takes us to the most vexed and perplexing question of all and so to Anna Yeatman’s essay, ‘Justice and the Sovereign Self”. She asks: “Is sovereign selfhood itself reconcilable with justice?” Sovereign selfhood (I think) is the claim people make for a group with which they identify, to determine its own existence and destiny. Questions of justice arise out of the relationship of a group making this claim with another group making the identical claim on its own behalf. Some of the ways of dealing with this problem ‑ for example, “a concept of independence which is reconcilable with interdependence” ‑ in fact preserve the supremacy of those, such as pakeha, whose claims to independence are already entrenched. The only way forward is beyond such concepts to “a legitimate politics of contestation concerning the relationship of the sovereign self to justice”.

Drawing upon the example of employment contracts, Young shows that a contract between seemingly equal parties may in fact be “a command under the guise of an agreement”. Paul McHugh is cited here: in 1840 the British Crown did not understand its sovereignty to be at all qualified by its recognition of chiefly authority. So “when the Crown is placed in a contractual relation to Maori, it is as the sovereign whole contracts with one of its dependent parts”. The only way out of this predicament is to abandon notions of the indivisibility of sovereignty. If the sovereignty of the Crown derives from popular sovereignty and if there is more than one people within a polity (as in the typical post‑colonial situation), then a situation may emerge in which that polity can no longer afford to hold that sovereignty cannot be shared. If some way of doing this cannot be found, the adherence to indivisibility must support (at best?) assimilationist regimes, with the colonised cast as dependants. We will have only “models of authority that rely on the exchange of obedience for protection”. If that exchange is not accepted by those expected to behave as dependants the “corporate sovereign self … can no longer command legitimacy”.

To point out the undesirable consequences of persisting with the idea of a single and indivisible sovereignty is one thing. To find a new prescription is quite another, but the need to do so is well worth arguing for. Locating such a sovereignty in the Crown is a fiction; worse, it is often a piece of mystification and a bludgeon lawyers and politicians use to silence criticism. But surely there is nothing mysterious about it? Once the focal point of all the functions of government, legislative, executive and judicial, was in actuality the person who wore “the crown”. Over the eighteenth and nineteenth centuries these functions shifted away from the monarch, but the fiction that they were the monarch’s was maintained. “The Crown” became a symbol for the action of the community at large in making laws, implementing laws and upholding laws. But if it has now become – and that is the big question to be asked – an inconvenient fiction, we should at least see if we cannot make up a better story.

If this is one of the basic problems, and if Yeatman’s way of putting it is useful, then some of the attempts at dealing with it in other essays begin to look a little tentative. Margaret Wilson shows that the Treaty of Waitangi occupies a lowly place within our constitutional law (others make higher but less persuasive claims for it). It can be seen as a contract but it suffers from being unenforceable. Thus, even within the inferior kind of contractual relationship described by Yeatman as a disguised command, the treaty has the additional defect of unenforceability. And even if it was accorded full constitutional recognition (in Wilson’s view desirable but unlikely) it would remain a disguised command. The best that can be hoped for at present is that it should continue to be incorporated in legislation so that the courts can take it into account.

Durie, for his part, notes that restrictions upon state sovereignty and parliamentary supremacy are evident in adherence to international agreements and economic controls, but he does not pursue his enquiry into the nature of sovereignty itself and the need to rethink inherited ideas of indivisibility. But perhaps his opening comment that “ultimate justice for indigenous peoples depends on political power‑sharing through constitutional reform “is an invitation to set off on a path that leads in that direction?

Denise Henare, whose main concern is to explore the 1991 Ka Awatea report, touches briefly upon these issues. The treaty is “the basis for the continuing relationship between the Crown and Maori”. Perhaps that relationship could develop to a position of full constitutional recognition. But even then the treaty, as an agreement between unequal partners, would occupy the position Yeatman describes, that of a command disguised as an agreement, as long as traditional notions of sovereignty stay intact. That relationship cannot evolve in an encouraging way as long as notions of indivisible sovereignty are adhered to so vehemently – and by people on both sides. For Maori sovereignty, at least as some assert it, is no more than a mirror image of the conventional British idea of sovereignty. Acculturation, and with it biculturalism, runs as deep as that.

But to conclude more positively: there is not the faintest reflection of these troublesome issues in Bob Mahuta’s essay on “Tainui, Kingitanga and Raupatu”. That icon, the treaty, is dismissed with scant respect: it was “intended … to transfer benefits progressively to the non‑Maori partner”. It would have been interesting ‑ but diplomacy would not have allowed it ‑ to have been given an insider’s account of the negotiations between Tainui and the government. Did they assume an equality between the parties of a kind which can be theoretically shown not to exist? Did Tainui in fact behave in a manner which simply took for granted the reality of its own “sovereignty”? At the preliminary signing of the agreement with the Crown Mahuta referred to it, perhaps not wholly humorously, as “the Treaty of Waikato”.

Bill Oliver is a historian currently working on the presentation of claims to the Waitangi Tribunal, and a former general editor of the Dictionary of New Zealand Biography.

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Posted in Non-fiction, Politics & Law, Review and Sociology
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