Settling the matter, Bill Oliver

Maori Sovereignty: the Maori Perspective
Hineani Melbourne
Hodder Moa Beckett, $24.95, ISBN 1 86958 208 x

Maori Sovereignty: the Pakeha Perspective
Carol Archie
Hodder Moa Beckett, $24.95, ISBN 186958 209x

Return to Sender: what really happened at the fiscal envelope hui 
Wira Gardiner
Reed, $34.95, ISBN 07900 04607

The Crown’s Proposals on Treaty Claims involving Public Works Acquisitions 
Office of Treaty Settlements
For distribution to claimants. Not for sale.

The first two books consist of interviews, some, if not all, conducted by telephone, with 17 Maori and 18 non-Maori people of some eminence. The interviews are reported in a mixture of direct and indirect speech and each is accompanied by a photograph and a brief biography. Given the standing of many of the people interviewed, the variety of interests they represent and the importance of the topic announced by the titles, these should be important books. Perhaps they are ‑ but for reasons other than those suggested by their titles.

The interviews range haphazardly over a wide field of Maori and pakeha hopes and fears. Being entirely unsystematic, they may well present a fuller picture of the current debate than a more organised presentation would have yielded. Whatever the compilers may have set out to do, they have in fact provided 35 people with an opportunity to sound off on Maori matters, much as if they were in the pub or at the dinner table.

Faced with such a miscellany of opinions, some related to the question of sovereignty ‑ or at least making use of that word ‑ and with such a range of arguments, semi-arguments and non‑arguments, it is hard to know how to proceed. Maybe the best course will be to take the titles seriously and try to see what these books actually say about the “sovereignty” so constantly invoked. In doing so most attention will be paid to the volume containing Maori views; they, after all, are making the demand.

The introduction contrasts pakeha bewilderment with Maori certainty “about the direction Maori are taking” and goes on: “Most believe that, left in charge of their own affairs and resources, Maori can effect changes to benefit not only their own communities but also wider New Zealand. This to them is Maori sovereignty or tino rangatiratanga.” (p11) The statements about “sovereignty” that follow fit that description. They do not look for the creation of a sovereign Maori political entity; they are concerned with Maori powerlessness within present structures and the need to revise those structures in a more equitable direction.

That is a reasonable goal and not one that should provoke too much in the way of ponderous pakeha rumblings about the indivisibility of sovereignty. There have been and always will be plenty of arguments about what control of “their own affairs and resources” should amount to, but that can go on without troubling the question of sovereignty. If anyone is in fact getting ready to set up a separate state or take over the present one, they are not well represented here ‑ except, perhaps, by Mike Smith, who in passing points to the Samoan model.

“Sovereignty” is a political term ‑ a fact frequently ignored in these books. Definitions of sovereignty vary but for the most part they agree that it relates to government and that it points to a form of authority which has no political superior in making and enforcing the law in a distinct polity. The characteristic mark of the sovereign is the absence of a superior. The concept hardly seems applicable to the exercise of autonomy and self‑determination in matters relating to the control of property and the expression of cultural independence.

The way in which Maori have over recent years taken to using the term to mean something else is a useful rhetorical device which seems to be designed to have two related effects. First, to intensify the debate and scare the altogether too‑ready‑to‑be‑alarmed pakeha. And second, to point to what was taken away from Maori in the past and to identify those who took it away.

Some, no doubt, do consider that past to be recoverable and they have the task of working out ways in which that could be done. But for most, surely, that past is seen to be beyond recovery. Those whose views are represented in this book are in fact looking for something both less and different. They seem to have chosen to clothe the “something less” in the nostalgic trappings of a lost sovereignty. If they have ‑ and this is only a guess and the problem may be no more than an inability to use words carefully ‑ then it is surely worth remembering that the price of this added intensity is a great deal of confusion.

This is not to belittle the claim to greater self‑determination but rather to question whether that claim has been at all advanced by bringing the word “sovereignty” into the discussion. Surely the claim itself is too important to be endangered in this way? There would be more clarity and so more hope of a reasonable outcome if everyone could concentrate their attention upon what appears to be the real justifiable and in principle attainable substance of Maori claims.

These, in fact, seem to be for a greater share of resources, a greater degree of institutional social control and a greater role in making and administering the law within the limits of which an enhanced self‑determination is to be exercised. The achievement of these sub‑sovereign goals will present problems enough, without adding what, taken at face value, appears to be a demand for either political dominance or highly questionable forms of shared sovereignty. (The latter are highly questionable because the sharers are bound to disagree at some point and then whoever settles the matter would be the sovereign, either one of the two in disagreement or a third party.)

The contributors to this volume do not appear to be looking for such a radical outcome; in that way it is a quite encouraging document. Though it hardly represents the Maori perspective, it does deliver a handful of Maori perspectives with hardly anything in them to cost even a cabinet minister or a member of Forest and Bird or a One New Zealander any loss of sleep. But the book brings out quite a number of matters which ought to attract their wide awake attention, most of them associated with “affairs and resources”.

The matter of resources is clear enough and “affairs” may probably be taken to indicate language, customs and ethnic identity. They are all matters of prime importance; the question (not approached in this book) is the extent, if any, to which their acquisition and preservation depends upon political separateness. As the “sovereignty” discussed here does not anticipate or require political separateness, we may probably take a muted message of hope from it.

To turn from the Maori to the pakeha “perspective” as represented in the companion volume is to have that mild optimism dimmed a little. True, some interviewees make no significant reference to the matter, while some, like most of the Maori contributors, use “sovereignty” to indicate something which it is not. But others, understandably enough, assume that the word means what their dictionaries tell them it means ‑ a political entity with no superior ‑ and they are sure that Maori cannot have that. As far as the evidence of these two books takes us, quite a few pakeha are busy telling quite a few Maori that they cannot have something they do not actually say they want. It looks like a classic case of talking past each other.

Paradoxically, this misunderstanding has grown to formidable proportions at the very time when the notion of sovereignty is diminishing in significance ‑ as Hugh Fletcher notes in his interview. He points to its decline in international economic relationships but in addition the state is retreating from domestic social and economic activism. The exercise of sovereignty has become much more arm’s length than it used to be. Devolution of authority to sub‑sovereign entities such as corporations which were once state agencies, departments of state which behave as if they were corporations, boards of trustees, health authorities and enterprises, research enterprises, private hospitals, schools, prisons, welfare and health providers (and the Governor of the Reserve Bank), gives weight to the comment attributed to Sir Tipene O’Regan, that the last thing we want is another parliament wasting our time and money by appearing to discharge functions it no longer has.

In the context of a retreating state the quest for control over “resources and affairs” becomes a more understandable, a more reasonable and in principle a more attainable demand. Every school board of trustees has almost as much. But to succeed it requires something other than the moral grandstanding implicit in an appeal to an insubstantial and deceptive notion of “sovereignty”. The more hard‑headed of the contributors to the Maori volume ‑ Ranginui Walker, Wira Gardiner, Robert Mahuta, Tipene O’Regan and, yes, Donna Awatere‑Huata ‑ take some care to distance themselves from the real meaning of the word. Probably they would not have touched it if the interviewer had not brought it up.

To turn from these two books to Wira Gardiner’s insider account of the series of hui through which the government failed to commend to Maori its proposals for the resolution of their grievances, is to enter the realm of real politics. Although a good deal of the more noisy kind of protest was made in the name of “sovereignty”, the overwhelming rejection of the proposals arose from the way in which, on essential matters, the government proceeded by way of fiat. It failed because it attempted to remove in advance key matters from the arena of debate and consultation. It limited the quantum of compensation (ie the “envelope” and its “cap”); it refused to allow natural resources and (for the most part) the conservation estate to be part of a compensation package; it insisted that the settlement of individual claims should take into account their relativity to other claims; it imposed a rigidly limited timetable upon the consultation which was to follow the publication of its nonnegotiable proposals. The government was bound to be rebuffed. A major question (not asked here) is, simply, did it count on that?

Though the book deserves a wide readership for its engrossing blow‑by‑blow account of the hui administering the rebuff, its lasting worth is limited by the importance of what it does not discuss ‑ the process by which the proposals themselves were evolved. Wira Gardiner was chief executive of Te Puni Kokiri (the Ministry of Maori Development) at the time of the hui and as such responsible for their organisation. Though he has since retired from that position, he did not feel that he could use in this book information which was confidential to him as chief executive.

Luckily, this does apply to the specific arrangements he was responsible for in relation to security, the gathering of what we must call “intelligence”, the evolution of tactics to deal with attempts at disruption, the late night discussions in motel rooms about what had gone wrong and the urgent last‑minute conversations on mobile phones. This in itself is an astonishing piece of political theatre ‑ of advance parties collecting information, police escorts, security heavies, speeding cavalcades of official cars, alternative routes and diversionary tactics ‑ the stuff from which a gripping television series might be made. Nor does it apply to the author’s insights into the characters of those with whom he was dealing ‑ his fellow officials, his political masters, the often irresolute elders, the cagey movers and shakers within Maori politics, the theatrically talented and media‑conscious manipulators of protest.

But confidentiality does apply to a matter aspect of greater significance ‑ the political process by which the Crown’s proposals were evolved. For though the author states “It is important for Maori to understand what our [Te Puni Kokiri’s] role was during the development of the policies” (p13) we are not in fact told what that was. We are told that the booklet on Consultation with Maori was “prepared by Te Puni Kokiri”. (p32) Presumably we are allowed to infer that the others, especially the Detailed Proposals, were prepared elsewhere. Where? And by whom?’

Rumours abound and the account given here will neither dispel nor confirm them. Still, there are a few clues. A cryptic paragraph notes first that Te Puni Kokiri had a “vital” role “in both the development of the proposals and the management of the consultation round”. It goes on: “The fact that our view did not prevail on many occasions was due to the robustness of the policy development process and not because we were completely blocked out.” (p13) We are not told who the other parties were or how they managed to be more “robust”. We can accept, however, that the effectiveness of his ministry was severely limited (in part by successive restructurings) in its capacity “to ‘mix it’ effectively with the rest of our colleagues in the state sector” and that it met with constant hostility from “one or two senior ministers”. (p45) The greater part of the chapter, “The role of Te Puni Kokiri”, is taken up with the subordinate function it was given, that of organising the consultation round and taking to Maori a policy which it had had little if any voice in shaping.

The subtext of Return to Sender is the marginality and ineffectuality of Maori in the places where power resides and where critical decisions are made ‑ in those anonymous and carefully concealed places where sovereignty is actually exercised. The real problem is to civilise it where it is in fact to be found; not to dream about it where (perhaps) it was and where (improbably) it might one day be.

The importance of the issue of where and by whom booklets and publications were prepared is illustrated by the Office of Treaty Settlements’ The Crown’s Proposals on Treaty Claims involving Public Works Acquisitions. It has been distributed by the office to all Waitangi Tribunal claimants. The substantive matters at issue are not the concern here, but rather the manner in which these “proposals” are notified to claimants and the language in which the notification is made.

Anyone who is tempted to believe that the government really is engaged upon a consultative process should consider the following:

1. The copy I have is dated 15 February 1996; comments are required “BY NO LATER THAN 28 FEBRUARY 1996″(sic). This would be rather abrupt even for social groups whose habits are not especially consensual. Further, that is all the “consultation” there will be: “The Crown will then consider those comments and decide whether or not any changes to the policy proposals are appropriate”. Decisions will be made without consultation. Should claimants decline to take part in such a sham, they will no doubt be criticised for failing to accept the “opportunity” they have been offered.

2. The language employed is peremptory in tone, exclusionary in effect and explicitly pre‑empts a number of controversial matters ‑ precisely the issues which should be discussed and would be the canvassed in any real consultation. For example (italics added):

“Lack of adequate consultation by itself … will not establish any entitlement to fiscal redress.” (p2.)

No Treaty breach exists … where the Crown, pre‑1981, failed to offer back land previously taken for a public work…” (p3)

“For historical claims … offer back of land [at current market value] is not unfair … and accordingly cannot give rise to a well founded public works grievance … whatever the circumstances.” (p3)

“Any changes resulting from such a review [of the Public Works Act 1981] will not affect historical issues… ” (p4)

In effect, “the Crown” is not “proposing” anything at all. It is announcing in advance what it will and what it will not agree to; on a range of vital matters arising from public works takings (a word more favoured by claimants than “acquisitions”) of land, claimants are being told that it has already been decided that they have no case. They can keep quiet and if they do not they will not be listened to.

Who is responsible for this kind of language, for this travesty going under the guise of “proposing” and “consulting”? We do not know. Maybe the lawyers and historians in the policy group of the Department of Justice or in the Office of Treaty Settlements? Maybe whoever it is that works in “The Office of the Minister in Charge of Treaty of Waitangi Negotiations”, the place from which the paper emanates? The only thing we can be sure of is that he/ she/ they has/ have no names.

That is quite a serious matter. When the doctrine of ministerial responsibility was still observed, public service anonymity was perfectly proper. The minister, we knew, would be held responsible for what was done on the basis of advice from officials and would accept responsibility. That is no longer the case. Now that the minister can pass the responsibility back to them, officials should no longer enjoy the protection of anonymity. Of course, if the matter becomes a public scandal, an inquiry will eventually establish their identities. But short of such an extreme situation, the public (and in this case tribunal claimants) will never know who it is that constitutes “the Crown” and makes rules in its name. “The Crown” has become anonymous and irresponsible. Papers such as this one (and the earlier Crown Proposals) should give a clear indication of the process through which they came into existence and the identity of the people who are speaking in the name of the Crown ‑ who are, in fact, the local, personal and (in this case) grievously mistaken embodiments of “sovereignty”.

Of course, it cannot be the minister, Douglas Graham. He is on record as being wholly committed to real consultation, except on the divisibility of sovereignty. Listen to the way in which he ends his contribution to Maori Sovereignty: the Pakeha Perspective: “I think most Maori people, if they got their economic base back and a bit of respect ‑ were listened to a bit more ‑ would be quite happy with the way things are.” (p122) Could he, perhaps, instruct his own officials to take his advice?

Bill Oliver is a historian who wrote Claims to the Waitangi Tribunal in 1992 and currently works on tribunal claims.

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Posted in Māori, Non-fiction, Politics & Law, Review
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