Waitangi and Indigenous Rights: revolution, law and legitimation
F M Brookfield
Auckland University Press, $39.95,
ISBN 1 86940 184 0
Recalling Aotearoa: indigenous politics and ethnic relations in New Zealand
Augie Fleras and Paul Spoonley
Oxford University Press, $39.95,
ISBN 0 19 558371 X
In 1989, Sir Geoffrey Palmer reflected rather dourly upon the consequences of his own government’s extension, five years earlier, of the Waitangi Tribunal’s jurisdiction back to 1840. Two of his comments are still relevant: “The first casualty in this debate has been the reasonable middle ground” and “the Treaty cannot bear all the weight that some seek to place upon it.” Of the two books under review, Brookfield’s is an attempt to mark out a “reasonable middle ground”, while Recalling Aotearoa exemplifies some of the problems arising from giving total priority to ethnic-indigenous rights, and to the Treaty as their guarantor. This review will concentrate upon the political positions developed in each book and their practical consequences.
Fleras and Spoonley are concerned with the contest between mono-, multi- and bi-cultural affirmations and aspirations in New Zealand. They argue for a “bi-national” alternative that displaces the first, contains the second, and expands the third – a regime in which sovereignty and power are shared equally by the two “founding nations” in a multiplicity of overlapping jurisdictions. Within these jurisdictions, two “majorities”, one of Maori and one of everybody else, operate together in “a bi-national arrangement involving fundamentally independent communities, both of whom are sovereign in their own right and yet share in the sovereignty of society.”
Their exposition rests upon the twin pillars of ethnicity and indigeneity. Identity and the rights deriving from it inhere in the ethnic group – “each group of people is fundamental[ly] different, and these primordial . . . differences constitute the basis for entitlement and engagement.” This could lead to a multi-ethnic position, but mere ethnicity is not enough to justify a claim to a share of power. Indigeneity raises ethnicity to an entitlement to exercise power as well as to occupy cultural space. Maori “have unextinguished rights to self-determination . . . [and] collective entitlements deriving from prior occupancy . . . recognised and guaranteed in the Treaty of Waitangi.” These rights “are both inherent and collective … [and] capable of assertion only by the group or representatives of the group.”
Scant attention is paid to any difficulties the notions of ethnicity and indigeneity may present. It is claimed that, worldwide, 350 million people are “living descendants of the original occupants of a territory” – that is, indigenous. But both “descent” and “original” present problems. Claims based on descent, at least in this country, entail an arbitrary choice among descent possibilities, so that ethnic identity becomes a matter of self-election tied to rather mystical notions of ancestral continuity. And for the greater part of the world “original” is a version of “prior”; New Zealand is one of the few territories in which the two terms equate. And even then, it requires more than mere assertion to establish that, the passage of time notwithstanding, indigeneity has an essence immune from mutability.
However, if Maori rights derive from prior occupation, what can be the basis of the rights of those who arrived later? Surely not their mere presence in such numbers that they cannot be ignored? Fleras and Spoonley refer, in passing, to “two founding nations” and describe the Treaty as a social contract between “founding peoples”. It is difficult to see how those who “disempowered and dispossessed” the right-bearing indigenous can have this standing. Perhaps implied is the Waitangi Tribunal’s fiction that the presence of non-indigenous people depends, at least morally, upon the invitation extended to them by the indigenous.
But more reliance seems to be placed upon a curious argument about the word “Pakeha”. Its use is taken “to signal support for tangata whenua ambition and a new agreement on sovereignty and rights.” Perhaps this suggests that the “rights” of “the majority group” depend upon some of their number accepting the special rights of the tangata whenua? If so, the problem presented by the greater part of the second “founding people” remains intact. The outcome of this reasoning should not be two-group ethnic equality, but the superior right of the prior group, and a Pakeha return to their (original) supplicant status. This may serve to illustrate the practical problems that emerge once the simplicity of conventional politics is left behind.
That simplicity is majority rule, and though its tyrannous nature has been questioned ever since it emerged, it has managed to survive the questioning. Any political re-arrangement, including one which opts for a distribution of power among a cluster of jurisdictions, will have to consider the justifiability of a system in which the political weight of a minority group (however defined) is as great as that of a majority group (however defined). It may well be argued that political individualism is outdated, or unjust, or unhelpful, but it will remain the case that one person ethnically identified would have a weight several times greater than that of another person otherwise ethnically defined. The tyranny of the minority, perhaps?
Fleras and Spoonley seek to outflank this problem by describing their scheme as a politics in which the contest is between the two majorities thrown up by the two power-sharing groups. But this does no more than place the problem of majority tyranny in a different context. Is it to be assumed that a minority within an ethnic group will be happier than a minority within a conventional representative polity? Perhaps the authors believe that ethnicity is so primary a social bond that intra-ethnic minorities will not feel aggrieved; perhaps they assume that such groups will always work consensually? The examples we have around us make either result unlikely.
Brookfield also ends up in a bit of a tangle, though a less severe one, when he gets around to specific reform suggestions. But the great value of his book lies in its refreshingly realistic analysis of a past which we need both to recognise and, to a carefully defined extent, redeem. It is about the ways in which political regimes and their legal orders, originating in some kind of revolutionary overthrow (that is, pretty well all of them), acquire either partial or complete legitimacy – the moral right as well as the mere capacity to govern. Briefly, Brookfield argues that, to a considerable degree, the legal order established by revolution in 1840 has acquired this legitimacy.
From time to time in current debates the word “theft” is used to characterise what happened in 19th century New Zealand. Inevitably, that term prompts the use of another – “conquest” – and the discussion gets bogged down. Brookfield advances the notion of “revolution” to take the place of both, while acknowledging that theft (“large-scale robbery”) and conquest (“usurpation”) contribute a good deal, though not everything, to the revolution of 1840. His argument is careful, scrupulous, well informed and, necessarily in the light of the amount of pseudo-legal history around, painstaking to the point of pedantry.
The core of his argument is the conclusion that British sovereignty in 1840 went well beyond what the chiefs signing the Treaty in that year were ceding to the Crown – and totally negated the intentions of the non-signatories. Victoria, in asserting her sovereignty by proclamation in 1840, “brought with her the supreme legislative power of herself in Parliament, with limits either imperfectly defined or (in the orthodox doctrine) non-existent.” Brookfield goes on: “It is surely impossible that any of the signatories can have intended to cede to the Crown the full power which it claimed and ultimately enforced.” The Crown seized more than it was given, and it was a revolutionary seizure.
How do revolutionary regimes, established by superior power, achieve legality and beyond that legitimacy? It would be difficult to find a present-day regime that did not in the past – whether recent or distant hardly matters – take its origin in revolution, either conquest or internal uprising. But two more specific considerations shape the New Zealand case. The first is imperialism – “serious questions of legitimacy” arise “where the conquest or seizure occurred in the course of colonization by a Western imperialist state.” The second is that just before it asserted complete sovereignty, the Crown incurred obligations towards Maori through the Treaty. These obligations and the failure to discharge them constitute a defect in the legitimacy (though not the legality) of the regimes deriving from the sovereignty declared in 1840.
The question, then, is: how and to what extent has legitimacy been acquired in New Zealand? The passage of time is basic, and here Justice Durie, writing about Maori customary law, is quoted to some effect: “as in most societies, time could legitimate original violence.” But the “minimal legitimacy of a working legal order” needs to be supplemented by “ideological, moral and prescriptive considerations”. To an extent, these have been met by the end of slavery in Maori society, the establishment of the rule of law (including due process), the recognition of aboriginal title through the common law, the partial recognition of rangatiratanga and the application of Treaty principles by the courts and the Tribunal. Brookfield concludes that “even if power was entirely usurped … certain exercises of it … have been benign and have been among the factors partly legitimating the present order.” That process would be completed by a constitutional reform which would securely entrench “Maori customary property rights and a qualified autonomy”.
Perhaps this argument pays too much attention to the opinions of intellectuals and too little to the behaviour of people at large. Early in the book Brookfield notes that taking part in elections “must be taken to enhance consent” and that, in considering the rights of indigenous people, attention must be paid to the “general human rights and perceptions of morality” they have come to share with “the dominant cultures”. But these matters do not figure in the later application of general principles to New Zealand. While “Maori who regard the Crown as a usurper” may still go along with its laws in a de facto manner, this leaves out of the account those whose behaviour suggests that they do not so regard the Crown. At least since the mid-20th century, Maori have behaved like other New Zealand people (eg, in voting, getting elected, paying taxes, utilising social services and the justice system, joining the armed services and the bureaucracy). This suggests an implicit acceptance of some legitimacy among those who are here assumed to deny it.
Even if such behaviour might be held to enhance further the level of legitimacy which the current legal order has achieved, Brookfield would argue that there is still a need for constitutional reform to fulfil the obligations the Crown undertook through the Treaty. He proposes a written constitution which would include “a national representative body” for Maori, which would be “at least a consultative body” and perhaps “a revising chamber” with power to delay but not to reject “measures it resolves to be contrary to the principles of the Treaty of Waitangi.” He also sets out a complex body of entrenchment provisions. While he acknowledges “present public apathy”, he pays no more attention to it than to offer the rather fragile suggestion that the reform might be “carried forward under political leadership which, with the support of liberal participants in the controversy, can convince doubtful or indifferent Pakeha of the justice of what is proposed.”
Brookfield considers that “justice does not require the large majority to share power equally with the minority” but rather a “constitutionally secure provision for the minority” in order to limit “the power of the majority”. But while entrenchment may make “secure provision” for a degree of Maori autonomy, if the new institutions can do no more than delay and cannot reject, Leviathan would have been only asked to think again, not required to change his mind.
This identifies a basic difficulty in Brookfield’s argument. To complete the acquisition of legitimacy, the Crown by right of New Zealand would need to fulfil the obligations accepted in 1840 by its predecessor, the unified Imperial Crown. But if these obligations include, as the author seems to believe, the exercise of a kawanatanga less embracing than the sovereignty which the Crown subsequently seized, it can only be fulfilled by the Crown’s acceptance of a less than sovereign power. That would, on this showing, entail a reformed structure in which “the Maori side” could do more than merely delay. The logic seems to take Brookfield, in spite of himself, fairly close to the Fleras and Spoonley camp.
In fact, both books contemplate the prospect that the reforms they propose will not be made. Brookfield covers this possibility with a reference to Paul McHugh’s argument that, rather than worry about sovereignty, we should leave that merely technical matter alone and get on with de facto equal negotiations within the sub-sovereign sphere of “horizontalised” Crown/tribe relations. Fleras and Spoonley say nothing on the specifics of constitutional reform. In fact, they disqualify themselves from doing so by conceding that the changes they commend are “unlikely to be realised”. If they accept (as they appear to do) the quoted opinion that “[t]he contention between Aboriginals and non-Aboriginals rests in fact on a paradigmatic contradiction of which the poles are, a priori, logically irreconcilable”, they would have excluded the possibility of a negotiated solution. In the end, it seems that while Brookfield is arguing for something he believes could happen by agreement, Fleras and Spoonley are conducting a campaign within a Gramscian “war of position”.
W H Oliver is a Wellington writer and historian, who was founding editor of the Dictionary of New Zealand Biography and has written frequently on the Treaty of Waitangi.