Treaty flows, Alex Calder

Treaty of Waitangi: The Land is Our History: Indigeneity, Law, and the Settler State 
Miranda Johnson
Oxford University Press, $41.00,
ISBN 9780190600020

Reconciliation, Representation and Indigeneity: “Biculturalism” in Aotearoa New Zealand  
Peter Adds, Brigitte Bönish-Brednich,
Richard S Hill, Graeme Whimp (eds)
Universitätsverlag, $70.00,
ISBN 9783825366193

As a child, waiting at the bus-stop on a rainy day could be enlivened by launching an ice-block stick into the fast-running gutter and following its progress as it caught on litter, rotated in an eddy, then darted through rapids all the way to the drain, down which it went, on an uncertain path to the sea. The fortunes of my Fru-ju stick are not unlike those of any long-standing Māori grievance, through courts and tribunals over the century and more, in which the Treaty of Waitangi has been a “simple nullity”, a “fraud”, then a “founding document”, through hearings, reports, submissions, fiscal envelopes, injunctions and negotiations, to arrive, at last, as a deed of settlement signed between Crown and iwi. It is not a story of incremental progress. After decades of persistence in the face of impediments and groundings, an unusual conjunction of circumstances in the 1990s allowed the waka reconciliation to rush forward as if double-sixes had been thrown in a board-game.

The differences emerging in our recent Treaty history are profound and far-reaching. For most of our settler history, for example, a river had been a stretch of land over which water happened to flow. Those owning land abutting its banks had a property right to the midpoint of the stream, while activities like fishing or kayaking were open to all. The settlement of Māori historical grievances over a waterway like the Whanganui River was, to some extent, practicable within this English common law framework, but for most of our history it has been constrained by that framework. It was as if the Crown could receive complaints on only one frequency ‒ its own. The Crown’s right to select the frequency was not open to question, but an entire bandwidth of Māori grievance was being tuned out. Thus, a long-litigated claim by Whanganui Māori foundered in the 1960s after the claimants had persuasively argued that they and the river were one. Their mana whenua over the river ought to have been preserved by the Treaty, but the iwi had been sidelined. They had not been compensated for the loss of their eel fishery, or for the removal of gravel, nor had they shared in revenues derived from the opening of the river to tourism. But the court found that their spiritual connection to the river was no basis from which to claim a property interest in it. In Miranda Johnson’s words in The Land is Our History, “Whanganui Māori might belong to the river, but if this was the case then the river did not belong to them.” Their rights had been extinguished when the adjoining lands were sold. Fast forward to 2012, and we see the Crown settling with Whanganui iwi on the basis of their unbroken connection to the river ‒  not only in its geographical entirety, but also as an ancestor figure with a legal personality of its own. What made this level of change possible? And what are its consequences?

The Land is Our History approaches the first of these questions comparatively, and with an anti-exceptionalist thesis. Her account of settler-indigenous relations focuses on Australia and Canada, as well as Aotearoa, and places each of these histories within a post-WWII context defined on the one hand by anticolonial independence movements in the emerging postcolonial nations, and by the Black campaign for civil rights in the United States on the other. Old struggles against the settler state began to take a newly compounded form in the 1960s, as activists began to see their local situation in terms of a nationalist, rights-based, identity politics centred on indigeneity. A “native” is descended from the original occupiers of the land, but an indigenous person claims a distinctive status as a member of a “first people”. He or she has rights in addition to those enjoyed by later-coming citizens. But those rights, which have never been extinguished, were systematically ignored by the majority white settler community in a process mixing racial discrimination with land-grabbing and socio-economic deprivation. Redress would no longer be a case of a native supplicant petitioning the Crown; it was a matter of the indigenous co-founders of the settler state reminding their partner, the Crown, of its failures and obligations to them.

Johnson traces the process of establishing an appropriate legal forum for reconciliation through several detailed case studies: the Gove land rights case in Australia, Dene land rights in Northwest Canada, and the Whanganui claim here. She shows how, in each jurisdiction, historians, lawyers and judges had to enlarge their ideas about evidence, while courts and commissions of inquiry grappled not only with cultural difference as presented to them by others, but also with the reflexive notion that a legal institution is embedded within in its own culture, and must therefore find new spaces through which to engage indigenous value-systems. The success of the reconciliation process also hinged on what it offered the settler community: an alternative to the shameless monoculture of the past, and new identities forged in the relationship with first peoples.

Johnson is alert to paradox and nuance in the complex story she tells, and I admire the way she focuses as much on the creativity of individual actors ‒ the judicious activists and the activist judge ‒ as well as on the larger cultural and historical trends shaping their respective contributions. The virtues of her book may strike some as a weakness: the canvas is large, her case studies are snapshots, and the explanatory brush is bound to be broad. It does no harm at all to see the flow of our Treaty history in a comparative context, but readers may well feel that our achievements in the arena of post-settlement justice lose definition in this wide-ranging study.

The essays collected in Reconciliation, Representation and Indigeneity, by contrast, are close-ups. The book’s origins lie in joint conferences organised between a group of German scholars interested in intercultural reconciliation and local specialists on Treaty matters. Richard S Hill distils his long and varied experience as a “Treaty practitioner” into a superb overview, reflecting on the achievements and challenges of the last 25 years. Among the latter, he notes government resistance to the conclusions of the 2014 report, He Whakaputanga me te Tiriti, which emphasises the 1840 Treaty as a power-sharing arrangement, rather than a ceding of chiefly authority to the Crown. He sees a risk, too, in the expectations of some Pākehā that, once the reconciliation process is “over and done with”, and redress for old wrongs having been made, the last impediment to integration will have vanished, and we can in effect return to the policies of the pre-Tribunal years. Our mutual recognition of tino rangatiratanga makes more of a difference than that, and there may well be turbulence ahead, as the “Treaty Fatigue” brigade come to recognise that their fundamental problem is with the Crown, not with pushy radicals.

Therese Crocker offers a similarly excellent overview of the Treaty claims process, while Richard Boast, another Treaty practitioner with vast experience, focuses on the potential for the reconciliation process to “exacerbate divisions within Māori society”. He warns that the Treaty settlement process, much like the Native Land Court, has the potential to produce winners and losers among Māori, leading to challenges either from within a claimant group or between them, especially when the negotiations concern large-scale regions. “Smaller, more rapidly expedited negotiations seem best,” he argues. Martin Fisher, in an interesting comparison of the settlements reached with the Crown early on by Ngāi Tahu and Waikato-Tainui, highlights the extent to which compromise permeates every stage of the process: even before they bargain with each other, iwi negotiators have had to manage the larger expectations of those they represent, while those negotiating on behalf of the Crown operate within the government’s internally debated sense of what is politically possible, fiscally prudent, and a sum sufficient to make an agreement durable. Several essays in the collection engage with the neo-liberal stance of successive governments, which has had an impact on Treaty education (Peter Adds), te reo (Rawina Higgins) and, most obviously, the privatisation of state assets (Marama Muru-Lanning).

Especially intriguing is a chapter from one of the German contributors, Tanja Rother, on the meanings of property. Her essay, “Mana whenua and the ownership of nature”, is an anthropological study of how differing notions of property circulate among people in and around Ohiwa Harbour. Suffice to say, I hope this piece will be read by the neighbours of an acquaintance of mine who, to her dismay, clear-felled seven mature trees on the boundary of their suburban section without a by-your-leave. And why not?  It was their property. The Waitangi Tribunal frequently reminds us that property is about relationships, not just about ownership. Our Treaty talk has for a long time focused on the remediation of historical grievances; I wish its lessons spoke across other fences. May the mana increase as the waka powers forward.

Alex Calder’s The Settler’s Plot was reviewed in our summer 2011 issue, available in our online archive

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