Trick or Treaty?
Institute of Policy Studies $22.00
ISBN 0908935 24 2
Justice and the Maori: the philosophy and practice of Maori claims in New Zealand since the 1970s
2nd ed, Oxford University Press $45.00
ISBN 0 19558382 5
On the face of it, no two books on much the same subject could be less alike. The first is a brief, apparently straightforward, highly personal, often anecdotal and seldom theoretical account of a major politician’s efforts to do justice (as he sees it) to the Maori in the 1990s. The second is a lengthy, academic (but still quite personal), complex and exacting theoretical analysis of the arguments prompted by renewed Maori demands for justice (as they see it) in the 1970s and sustained since by continuing claims and agitations.
Yet they have a good deal in common. Each is concerned with the future as well as with the recent past – Douglas Graham with the social peace he hopes will result from the resolution of claims, and Andrew Sharp with the limits to social conflict he hopes we will manage to maintain. For neither writer does the outlook seem too bleak; each relies upon the politics of a sufficiently cohesive and rational society to fulfil their hopes.
Graham regularly turns the discussion away from the ideologically intractable to the politically feasible. He seems not to worry too much about what is for many the gap between justice and practicality. For Sharp that gap, especially as it is perceived by competing ethnic groups, is crucial, but he hopes for a similar outcome:
My own hope is that my compatriots, seeing that there is justice on both sides and seeing also that there is more to life than doing justice, can continue to muddle and fudge along. I hope for a more enlightened, a more principled, a more cheerful muddle and fudge…. Righteousness is easy; the sustaining of political society is not, and it is a much greater thing.
It is good that Sharp’s book has come out in a second edition (the first appeared in 1990) with an added section on the 1990s, but sad that all the commendations dyed on the cover come from Australia, the United States and Canada. Perhaps, outside academic circles, the book has been passed over because it was lengthy and at times not easy reading? At a deeper level, Sharp may have puzzled protagonists of both kinds because he does not see “doing justice” as the most important political good. He cannot readily be classified in one of the conventional and “righteous” positions in current debates. His book deserves serious and determined consideration, especially by all those immersed in the practicalities of claims and conflicts, for its thoroughness, its refusal to balk at the hard issues, its insistence upon the primacy of finding ways of going on living together and for the perspective that insistence provides.
Sharp’s awareness of deep divisions and of the problems, even the perils, they present, is not so evident in Trick or Treaty? Of course Graham (who better?) is aware of the rough ends and dissatisfactions the negotiations and settlements have left behind, but he does not dwell upon them. For Sharp present discontents and present achievements are more evenly balanced. Where Graham assumes (or seems to) that the gap between the practical result and “justice” (as conceived by many participants in the process) is not a major concern, Sharp, attending more to the ways in which differing justices result in hostilities, argues for a. politics resourceful enough to contain the conflict.
Sharp’s “recurring theme is that as a matter of fact Maori and Pakeha have separate and often contradictory conceptions of what justice demands . . . no plausible conception of a justice that could be adopted by both peoples emerged in the l980s.” Nor, in the debates of that time, did “Maori and Pakeha … agree on what rights people actually had (or ought to have), or on what was due to them.” (These generalised introductory statements are exemplified in detail in the following chapters.) The demand for justice arising from the experience of injustice contributes to (not causes) social conflict and, in extreme situations, the dissolution of political society.
That point has not been reached in New Zealand; probably it is unlikely that it ever will be. However, Sharp’s analysis is a reminder that such disputes have had more extreme outcomes elsewhere, and that a persistent habit of compromise (“muddle and fudge”) has thus far saved us from them here. His book is “a record of justice as conceived within a particular political culture – and conceived separately at times by the two largest ethnie [roughly, ethnic groups] who make it up.” Where this separation has occurred and where it threatens to widen, it is the function of politics to prevent the contestants from doing serious harm to each other and to the political society within which they cannot avoid living (or dying) together.
Graham, as his good-humoured, brisk and businesslike, what-you-see-is-what-you-get, public stance would suggest, is determinedly optimistic: “The human spirit cannot be crushed where justice is the ultimate goal even when all appears bleak.” Such an appeal to an ideal justice can only be based on the conviction that there is enough consensus and goodwill to enable both sides to agree upon and live by its precepts. That conviction enables him to assume the existence and accessibility of a common justice to which Maori and Pakeha can appeal with equal confidence. That is a large assumption; it depends upon the strength and depth of recent changes, which to some appear rather fragile. Graham knows that Maori and Pakeha could not in the past appeal with equal confidence to the “justice” available through much the same institutions as those which operate today. The past in which one of two rival “justices” defeated the other is not far behind us, if behind at all.
For Graham, then, justice has an “above the battle” character. It exists in a body of laws, courts and public agendas to which the aggrieved may confidently look for redress – or, rather, for that quantum of redress which political reality will permit. Justice is practical justice; it can only be done within existing political possibilities. This is not too far from Sharp’s warning that taking justice too seriously is dangerous and his assertion that “the sustaining of political society … is a much greater thing.”
It is understandable enough that Graham presents a hopeful face; he has achieved a good deal and has done so as a political leader in a not wholly sympathetic party. Further, much of his book is an account of dealings with Maori leaders who, like him, have been pragmatically intent upon the best deal available. Less pragmatic participants are represented mainly by the protesters at the “fiscal envelope” hui. But there are people, both Maori and Pakeha, who either reject the very notion of deals or hold out for goals beyond the capacity of the resolution (or any other political) process to deliver.
From this vantage point, if the process does not deliver to Maori all that they lost through colonisation, it is no more than the most recent Pakeha trick. The belief, not limited to extremists or to Maori, that the ill to be cured is the political and economic outcome of colonisation, lies at the heart of the Maori demand for “their” justice. If Graham is right in not taking this programme seriously, we can expect a reasonably easy walk down the road to the future. If, however, Sharp is the better diagnostician, we had better hone our political tools to give them a sharper edge than they have yet developed.
While Graham is out of tune with a good deal of Maori aspiration, he is also at odds with a considerable body of Pakeha opinion. Many Pakeha, and not just the rednecks, begin to feel restless when they are told that the expectations of advantage with which Maori signed the Treaty of Waitangi were not respected by the Crown, that the failure at the outset to set up a body from which Maori could seek justice was an act of betrayal, and that the great injustices inflicted in the course of colonisation must now be redressed.
These statements may give offence because they question, as do Maori demands for justice, the moral character of the Pakeha past. But in fact much that Graham goes on to say is equally unacceptable to many Maori. He rejects recent Tribunal opinion that the cession of sovereignty made in 1840 is conditional upon the Crown’s fulfilment of its promises – “where sovereignty is at the moment is not going to change”. He rejects the proposal for a form of judicial review through which the courts would judge legislation on the basis of a fundamental law derived from the Treaty. He rejects the conclusion that the Treaty created a partnership between Crown and Maori. The relationship is like a partnership but “The Crown is not ‘in partnership’ with Maori in running the country”; “some sort of joint management with veto rights vested in each party . . . cannot be the case.” In his list of “Treaty principles” he excludes shared sovereignty notions and defines the Crown’s duty of protection in a much more restricted way than does the Waitangi Tribunal.
These positions indicate the limits within which Graham operates. He may well be all the more effective for being so clearly traditionalist; his ability, thus far, to carry his own party with him may depend upon it. But, by the same token, many Maori see in his traditionalism a refusal to contemplate any “real” changes in the distribution of power and wealth. It seems to me that Mr Graham would find it perfectly acceptable to be placed about midway between the more radical Maori and the more conservative Pakeha positions, and between their two conflicting “justices”. His achievements are considerable and are not diminished by being less than many Maori hope for, and more than many Pakeha care for.
W H Oliver is a Wellington writer and historian, who was the founding editor of The Dictionary of New Zealand Biography and has written frequently on the Treaty of Waitangi.