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Wickliffe, Caren and Dickson, Matiu --- "Maori and Constitutional change" [1999] NZYbkNZJur 3; (1999) 3 Yearbook of New Zealand Jurisprudence 9

Last Updated: 11 April 2015

MAORI AND CONSTITUTIONAL CHANGE

BY CAREN WICKLIFFE AND MATIU DICKSON^*

E nga Rangatira katoa he mihi nui tenei ki a koutou kua huihui nei ki te korero i nga take hononu kei mua i a tatou. He mihi ki te hau kainga no ratou te mana whenua, otira ki te iwi o Rangitane. E aku Rangatira na koutou te karanga, te pohiri hoki ki a matou kia tau nei ki runga i to tatou marae hei whiriwhiri i nga take e pa ana ki te kaupapa o te ra. He whakaaro rangatira tena.

No reira tena koutou, tena koutou, tena koutou katoa!

Ko tenei pepa na maua ko taku tuahine a Caren Wickliffe i whakarite. E tika ana ma maua hei whakahaere i te pepa nei no te mea he honohononga na maua i roto i te whakapapa. He uri ahau no Romainohorangi no te waka o Mataatua. Ka moe a Romainohorangi i a Paewhitu no te waka o Horouta, ko tenei te waka o Caren. Ka puta mai to raua tama ko Te Rangihouhiri. Ko ia te timatatanga o taku iwi o Ngaiterangi. Otira, ma te whakapapa, ko maua ano maua ko Caren.

I mua i taku kauhau ki a koutou, he paku korero taaku mo etahi o nga whakaaro kua putaina ke mai e nga kaikorero i mua i ahau. I ki mai tetahi o nga kaikorero, ko te kai a te rangatira he korero engari ki a matou o Ngaiterangi, he paruparu te kai a te rangatira. Koinei te take. I mua, ko te tahuna te wahi i whakaritengia ai nga toa o Ngaiterangi i a ratou mahi te mau taiaha. He maha nga whawha ringa o te moana o Tauranga. Mena ka titiro te tangata ki a ratou i runga i te tahuna nei, orite tonu ratou ki nga papaka o te tai. Na ka huri te whakaaro ki te papaka hei tohu rangatira mo matou o Ngaiterangi.

Anei nga ahuatanga Rangatira o te papaka;

• Tino kaha ia ki te whakarongo ki tana iwi. Mehemea ka to ki te korero, kotahi tana korero heoi ano ma te iwi e tautoko i ana korero tohutohu. He tohu Rangatira tenei.

Since this paper was written, Caren Wickcliffe has become a Judge of the Maori Land Court. At the time of submission of the article both she and co-author Matiu Dickon were Senior Lecturers in Law at the University of Waikato.
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• E kore te papaka e tino hiahia ana ki te whawhai i te mea kei mate atu etahi o nga tangata o tana iwi. Engari ke, mena kei te ahei ia ki te whawhai he tino hoariri te papaka. Ka kaha ake ki te whawhai tae noa kia mate ia. Ka pera hoki te papaka kia ora ai tana iwi. Ka whawhai tonu ahakoa kua ngaro te waewae, te ringaringa ranei. He tohu Rangatira tenei te mau tonu ki te kaupapa.
• I te wa ka whakahokia ia ki tana rua, e kore ia e huri tana kanohi i te hoariri. Ka hikoi ma muri ia. Kua mataara te papaka. He tohu Rangatira ano tenei.

No reira kei aku Rangatira, he honore tenei Ida to ahau i mua i a koutou ki te kauhau, ki te tautoko te kaupapa o te ra!

The British Crown's revolutionary take over of power in Aotearoa, New Zealand legitimated only in part by the Treaty of Waitangi, was otherwise an `immense intrusion into other people's business'— or indeed a large scale robbery.'

Treaty gives Maori special status, but tino rangatiratanga as defined by the Courts and the Waitangi Tribunal, does not equate with the "sovereignty" or governance of the Crown.²

Incorporation of the treaty in the constitution was opposed explicitly by some participants and also by way of what one participant called "silent resistance" from non-Maori who did not want to engage in the debate.'

The above quotes form the backdrop for this article. The first quote is an acknowledgement from one of the country's well-known constitutional lawyers that the Crown's acquisition of sovereignty in New Zealand was a revolutionary take over of power. The second quote reflects the standard governmental and legal position on the status of Maori rights including sovereignty in New Zealand and the last quote mirrors the position adopted by many non-Maori when discussions begin on whether we need constitutional change in New Zealand.⁴ We have chosen these quotes to

Brookfield, F M Waitangi and Indigenous Rights: Revolution, Law and Legitimation (1999) 181.

2. Graham, D "Where does Sovereignty lie?" from "Building the Constitution" Conference Paper, April 2000, http://www.vuw.ac.nzlinst-policy-studies/conf/.
3. See generally Grimes, A "Thematic Summary" in "Building the Constitution" Conference Paper, 7-8 April 2000, http://www.vuw.ac.nz/inst-policy-studies/conferences/summary.html.

• See Perry, P and Webster, A New Zealand Politics at the Turn of the Millennium New Zealand Politics (1999). A recent survey of New Zealand attitudes completed by Massey University indicated that 1/3 of those New Zealanders interviewed want to see the Treaty abolished, 29% want to see greater limits placed on Maori claims, 25% want claims to be dealt with through the Waitangi Tribunal and only 5% want the Treaty strengthened with the full force of law.

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illustrate the different hurdles that Maori face when they turn to debate constitutional change, what it might look like and how it can be achieved.

This paper reviews the historical undermining of Maori sovereignty and self-government by the Crown from 1840 to the present leading to the "revolutionary take over of power" that Brookfield describes above. It also summarizes some of the models for constitutional change discussed to date by Maori and the means for giving them effect. Finally, it proposes the need for a national Constitutional Hui to continue to advance the debate and search for a common Maori position on constitutional change. In this paper we do not take a position on what form constitutional change should take for Maori. Rather we attempt merely to summarize developments that have taken place to this time and encourage further debate.

The Role of Maori Tribes

Ko Hikurangi te Maunga
Ko Waiapu te Awa
Ko Ngati Porou te Iwi

Ko Mauao te Maunga
Ko Tauranga te Moana
Ko Ngaiterangi me Ngati Ranginui nga iwi.

All Maori have ways of identifying themselves, their whanau, hapu and iwi. Through these words we all proclaim the traditional and cultural identity of our tribes, as collectives, as tribes, as nations. We also locate them by reference to geographical features of sacred significance and we announce our allegiance to and citizenship of these collectives. Without this allegiance there would be no tribal nation and we would not be able to claim collective, as opposed to individual, rights to self-determination, self-government over our lands, forests, fisheries and other taonga listed in the Treaty of Waitangi. We cannot ignore the tribe and other important Maori social groupings in our analysis of what constitutional change is necessary. We have, therefore, taken this review to the local and district level.

1. BACKGROUND

In 1835, when the United Tribes of New Zealand declared their sovereignty over New Zealand through the Declaration of Independence they would not have been able to predict that for over one hundred years Maori independence and autonomy would be usurped by a revolutionary take over
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of power! After all, at this time Maori sovereignty was assumed and acknowledged by the British Colonial Office.' Recognition of Maori sovereignty was manifest in instructions, imperial actions, legislation and policy in place from the so-called "discovery" by James Cook through to the instructions to James Busby in 1835.' No rights were sought by the Colonial Office or exercised by the Crown over Maori tribes or their territory before 1840, although the Crown began to prepare the ground to infiltrate Aotearoa/New Zealand in 1839.⁸

The Treaty of Waitangi would be the doorway into New Zealand. In 1839 the Colonial Office decided to acquire territories in New Zealand and colonial officials were instructed accordingly. Historians emphasise different reasons for this change in British policy.' Some of the reasons are explained in Lord Normanby's Dispatch, 14 August 1839, to Captain Hobson before he was sent to New Zealand. He was advised that the principal objective of his mission was to negotiate with Maori for sovereignty and to facilitate the establishment of colonial government.' Hobson was also advised that he must assert the right to pre-emption and to issue a proclamation requiring that all equitable purchases of Maori land be confirmed by Crown grant." Upon Hobson's arrival in New Zealand in early 1840 he issued a Proclamation announcing that titles to land in New Zealand not derived from or confirmed by the Crown were void.1² He then proceeded to organise the drafting of the Treaty of Waitangi.

The initial signing of the Treaty of Waitangi took place with the Northern chiefs on 6 February 1840. The Treaty of Waitangi was written in Maori and English." The Treaty of Waitangi was then taken to other locations and the

5. Declaration of Independence 1835, as reproduced in Kawharu, H (ed) Waitangi Maori and Pakeha Perspectives of the Treaty of Waitangi (2000).
6. See Williams, D "The Foundation of Colonial Rule in New Zealand" (1988) 13 NZULR 54, 55.^*
7. McHugh, P The Aboriginal Rights of the New Zealand Maori at Common Law (Unpublished PhD Thesis, Sussex College, Cambridge, 1987) Part II.
8. See Normanby Dispatch to Captain Hobson in McNab R. (ed) Historical Records of New Zealand (1908) Vol. I, 730-735.
9. Boast, R. "The Law and the Maori" in Spiller, P, Finn, J and Boast, R A New Zealand Legal History (1995) 130.

10 Reproduced in McNab R (ed) Historical Records of New Zealand (1908) Vol I, 731.
¹¹ Ibid, 733.

12. Rutherford, J The Treaty of Waitangi and the Acquisition of British Sovereignty in New Zealand 1840, Auckland University College, Bulletin No. 36, History Series No. 3, Auckland, 1949, 17-18.

¹³ Treaty of Waitangi Act 1975, 1" Schedule.
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Maori version of the Treaty was signed by some 500 Maori chiefs between February and September 1840.1⁴

Proclamations were issued by Hobson on 21 May 1840 declaring the Crown's sovereignty over the North Island by cession and over the South Island by discovery." On 5 and 17 June two further Proclamations were issued claiming sovereignty over Stewart Island by discovery and the South Island by cession.' The first two Proclamations were confirmed by the Colonial Office on 2 October 1840." The two grounds upon which the Crown's assertion of sovereignty rests are the Treaty of Waitangi 1840 and the 1840 Proclamations." Recent legal scholarship indicates that the May Proclamations were the first step in the process of the Crown's assumption of power, at least partly by revolution, over the Aotearoa of the Maori.1⁹

A review of the text of the two versions of the Treaty of Waitangi reveals that the Maori version is not a direct translation of the English version.²⁰ According to Article the First of the English version, the chiefs ceded "absolutely and without reservation" all the rights and powers of sovereignty.²1 The Maori version of the Treaty of Waitangi, on the other hand, conveyed only the right to "kawanatanga katoa" (all government) something less than full sovereignty 2² Article the Second of the English version confirmed and guaranteed to Maori the full exclusive and undisturbed possession of their lands, estates, forests, fisheries and other properties which they collectively or individually possesssed so long as they

" See generally Orange C. The Treaty of Waitangi (1987) chapters 1-4 and note that less than 40 Maori signed the English version.

15. Lieutenant-Governor Hobson to the Secretary of State for the Colonies, 25 May 1840 GBPP (IUP Shannon, Ireland) [1835-1842] Vol 3, 137. For a discussion on the impact of these Proclamations see Keith, K "International Law and New Zealand Municipal Law" in Northey, J F (ed) The AG Davis Essays in Law: A Tribute to Professor AG Davis formerly Dean of the Faculty of Law at the University of Auckland (1965) 136.
16. Discussed by Orange, C The Treaty of Waitangi (1987) 84 and Evison, H C Te Waipounamu, the Greenstone Island: A History of the Southern Maori During the European Colonisation of New Zealand (1993) 141.

¹⁷ Orange, C The Treaty of Waitangi (1987) 85.
¹⁸ New Zealand Maori Council v Attorney General [1987] 1 NZLR 641, 671.

19. Brookfield, F M Waitangi & Indigenous Rights, Revolution, Law & Legitimation (1999) 85.
20. See New Zealand Maori Council v Attorney General, supra n 18 at 662, 671 and the Treaty of Waitangi Act 1975, Preamble.

²¹ Treaty of Waitangi Act 1975, 1" Schedule.

22. Kawharu, H "Translation of the Maori Text, Appendix" in Kawharu, H (ed) Waitangi, Maori and Pakeha Perspectives of the Treaty of Waitangi (1989) 319-321 and see New Zealand Maori Council v Attorney General, supra n 18 at 671-672 for a discussion on the different understandings of the Treaty of Waitangi held by Maori and the Crown. Contrast with the judicial position in 1877 when it was held that the Treaty of Waitangi was a simple nullity in Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72.

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wished to retain them. This guarantee in the Maori version was described as "te tino rangatiratanga" (full chieftainship/authority) over their "whenua" (lands), "kainga" (villages) and "taonga" (matters of esteemed value). At the least, this article was intended as a positive guarantee of protection to be accorded to land, villages and other important assets.²³ Article the Second in the English version also granted to the Crown the right of pre-emption. The Maori version describes this as the right to buy and sell." By Article the Third of the English version, Maori were granted all the rights and privileges of British subjects. The guarantee of protection is described in the Maori version as being treated the same as British subjects.

The consequence of the differences between the Maori and English texts was that Maori and the Crown arrived at quite different understandings and conclusions as to what the Treaty of Waitangi ceded and guaranteed. In contemporary times it is now agreed that the least the Treaty of Waitangi guaranteed was Maori "tino rangatiratanga" over their "whenua" and "taonga" or the full chieftainship over their lands, estates, forests and fisheries and other matters of value 2³

By the Treaty of Waitangi, and the proclamations of sovereignty that followed in May 1840, the Crown would seek the international and domestic legitimacy it needed to establish the governmental apparatus of the colonial state." Maori understanding of the process was quite different and many saw the Treaty of Waitangi as an affirmation of their right to self-determination or independence. That understanding has continued to the present day.

The Crown, however, set about establishing a system of local self-government for Maori tribes, a system that would subordinate Maori sovereignty and authority to that of the Crown.²⁷ It is important to

23 New Zealand Maori Council v Attorney General, supra n 18 at 674.

24. See Waitangi Tribunal Muriwhenua Fishing Report (Wai 22, Department of Justice, Wellington, 1989) 181 for a discussion on the meaning of the Maori version of Article the Second.
25. New Zealand Maori Council v Attorney General, supra n 18 at 674. See also Kawharu, H "Translation of the Maori Text, Appendix" in Kawharu, H (ed) Waitangi, Maori and Pakeha Perspectives of the Treaty of Waitangi (1989) 319-321 and see also his Introduction in the same book which elaborates on his translation.
26. See Wickliffe, C Indigenous Polities, Self-Government, Law, Citizenship and Property Rights — Inside-Out, Outside-In, A Comparative Study of the United States of America, Canada, and New Zealand (Unpublished LLM Thesis, Victoria University of Wellington, 1996) chapter 5 for a full discussion on the events surrounding the signing of the Treaty of Waitangi and the impact of the Proclamations of 1840.

27 See for example the Constitution Act 1846 (UK) 9 & 10 Vic c. 103, s 10 and Constitution Act 1852 (UK) 15 & 16 Vict. c. 72, s 71. This last section was repealed by the Constitution Act 1986. For a general discussion on Crown policy see Ward, A
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remember that self-government denotes the ability to exercise and enforce your authority coupled with the ability to make laws. The Crown has provided for some form of diminished local self-government from 1840 through to the present.

However, the effectiveness of even these reduced forms of recognition of the right to self-government would be undermined through the actions of the Crown and local settlers, namely large scale land purchases, the wars of the 1850s-60s, the repeal of legislation recognizing the limited right to self-government and the introduction of the Native Lands Act 1862 and 1865." These actions would attack and reduce the jurisdictional land base upon which Maori sovereignty and self-government was exercised." In addition, legislation would gradually encroach into Maori social life changing, for example, Maori customary practices in relation to whangai, marriage, divorce, land and natural resource use and crime.³⁰ These mechanisms have been so successful that only significant constitutional change can fully restore Maori sovereignty, as it existed over the entire country pre-1840.

2. HISTORICAL CROWN MODELS OF MAORI SELF-GOVERNMENT

Maori have unsuccessfully attempted to adopt national models for self-government without reference to the Crown. These attempts have included the Kingitanga in the 1850s, which was a movement to establish a Maori King and inter-alia a land league of tribes committed to protecting Maori land from alienation to European settlers.' While the movement has survived to this day, it was unsuccessful in its attempts to prevent the alienation of Maori land. Another significant attempt was the Kotahitanga or Maori Parliament convened for the first time in 1881 at Te Tii Marae,

A Show of Justice: Racial 'Amalgamation' in Nineteenth Century New Zealand, 183252 (1968).
2s See generally Brookfield, F M Waitangi and Indigenous Rights: Revolution, Law and

Legitimation (1999) chapter 5 and see also Williams, D Kooti Tango Whenua' the
Native Land Court 1864-1909 (1999).
²⁹ Williams, D, ibid at chapters 2-3.

³⁰ See for example Native Lands Acts 1865-1909 as an attack on Maori social organization through the individualization of land; Native Land Act 1909, s 19(1); Maori Purposes Act 1951, Maori Affairs Act 1953, ss 78-79 and the Adoption Act 1955 regarding the status of Maori adoptions; Marriage Act 1955 where Maori customary marriage is not recognized; Guardianship Act 1968 where only natural birth mothers and fathers have rights to custody of a child. For a general discussion on these statutes see Law Commission Justice: The Experiences of Maori Women (NZLC R. 53, Wellington 1998) chapter 2. On the erosion of Maori jurisdiction in relation to criminal offending in Maori communities see Ward, A A Show of Justice: Racial 'Amalgamation' in Nineteenth Century New Zealand, 1832-52 (1968).

31. Parsonson, A "The Pursuit of Mana" in Oliver, W and Williams, B (eds) The Oxford History of New Zealand (1981, reprinted 1991) 424-425.

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Waitangi.³² Like the Kingitanga, the Kotahitanga was a movement designed to unify Maori tribes and it was used as a vehicle to discuss Maori grievances relating to land confiscations, Maori land laws and different Government policies. It survived until the early 1900s when its authority was eventually superseded by the Maori Councils established under the Maori Councils Act 1900. A contemporary example of a national model for self-government has been the Maori Congress established in the late 1980s to facilitate tribal development in line with the Government's policies on devolution that were current at that time.

While successful for short periods in achieving some unity, most of these models collapsed due to serious resource constraints and differences of tribal opinions. They were movements that were very much dependent on certain historical leaders and the political context of their times.

In comparison, the Crown attempts in New Zealand have been equally unsustainable. While provision has been made for different forms of self-government for Maori at various times since 1840, these models have all been subjected to the whims of successive governments rendering them ineffective in representing Maori views. These models have been provided for in laws passed by Parliament and they include:

National Level

• The Constitution Act 1852 section 71 — where areas could be set aside as native districts within which Maori law, customs and usages could be used to govern themselves. This section was never used in New Zealand and no districts were ever set aside. Section 71 was repealed by the Constitution Act 1986 despite Maori objections from Professor Hirini Mead and the Maori Members of Parliament.
• The Maori Representation Act 1867 creating the Maori seats, still in existence in a different form today. The number of Maori seats in Parliament has always under-represented the entire Maori population. Today, the numbers are still determined by reference to those Maori who are enrolled on the Maori electoral roll rather than the entire. Maori population. Although MMP has delivered more Maori into Parliament these MPs are constrained by party politics and there remains no independent Maori voice or body that can provide independent Maori advice and governance.

³² See generally Cox L Kotahitanga: The Search for Maori Political Unity (Oxford

University Press, Auckland, 1993).

Local and District Level

• The Native District Regulation Act 1858 and the Native Circuit Courts Act 1858 — used by Governor Grey to establish the Maori Runanga system during the 1860s whereby Maori could make laws relating to sanitation, fencing, wandering stock, development of housing, protection of property, control alcohol and suppression "injurious native customs". Disputes where mediated by resident magistrates, Maori assessors and Maori juries. These Acts were subsequently repealed in 1891. Maori juries continued in various forms until 1962.
• The Maori Councils Act 1900 establishing councils that could exercise law making and administrative functions similar to local governments in villages and districts. It was their duty to formulate general plans for the purposes of ascertaining, providing, and proscribing rules for the observance and enforcement of rights, duties, and liabilities among the tribes in relation to all domestic matters. They also exercised the powers previously exercised under the Runanga legislation and they exercised some authority over their fisheries. The Councils were never adequately funded and they lost popularity."
• The Maori Social and Economic Advancement Act 1945 was an attempt to meet Maori aspirations for self-government by creating a multi-layered scheme of tribal administration from the local to the regional or district level. Many of the by-law making powers of the earlier legislation relating to village works, sales of goods, fisheries and traffic and alcohol control were continued into this legislation. This Act was repealed by the Maori Welfare Act 1962.
• The Maori Welfare Act 1962 was later renamed the Maori Community Development Act 1962. This is the Act that establishes the New Zealand Maori Council with its layers of District Councils and Marae Committees. This Act was a component of a broad programme of law reform designed to integrate Maori and European leading to the eventual assimilation of Maori through rapid urbanisation 3⁴ Under the Maori Community Development Act 1962 all lawmaking authority held pursuant to previous statutes, other than those restricted to marae control, were removed. However, section 18(c)(iv) does impose on the New Zealand Maori Council an obligation to "promote, encourage, and assist Maori to ... apply and maintain the maximum possible efficiency and responsibility in their local self-government and undertakings." It is

³³ See discussion by Cox L, ibid at 96.

34. See Hunn J K Report on Department of Maori Affairs with Statistical Supplement (AJHR, 1961, G.10) 14-16 and note that the "Hunn Report" would become the official policy of the National Government during the 1960s as discussed in Dunstall G. "The Social Pattern" in Oliver W & Williams B (eds) The Oxford History of New Zealand (Oxford University Press, Auckland New Zealand, 1981 & reprinted 1991) 424-425.

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through this provision that Maori rights to self-government remain recognised in New Zealand's statute law.

• The Maori Trust Boards Act 1955, originally a consolidation of a number of statutes passed in the period 1920-1950 establishing individual trust boards. Basically these boards were established to administer tribal settlements of Maori claims. The Act was passed to ensure that the Parliament retained control over how these settlements and tribal assets would be administered. With the exception of Te Runanga o Ngai Tahu and the Tanui model, the Runanga established during the 1980s-1990s are all Maori Trusts Boards that remain subject to the jurisdiction of the Minister of Maori Affairs. These Boards exercise cultural, health, social, economic, welfare, educational and vocational training functions which can only be described as administrative. They are not models of self-government.
• After the settlement of their treaty claims, two tribes have accepted models for the administration of tribal assets pursuant to private statutes of the New Zealand Parliament. The Waikato Raupatu Claims Settlement Act 1995 dissolved the previous Tainui Maori Trust Board. Its successor in terms of the administration of assets has been the Waikato Raupatu Trustee Co. Ltd." In addition, the Waikato tribes have established a Kauhanganui or governing body to represent the views and interests of Tainui. Te Runanga o Ngai Tahu Act 1996 establishes a tribal structure to manage its assets and its business and to distribute benefits to the Papatipu Runanga (ancestral land holding councils) of Ngai Tahu and the individuals comprising the tribal membership of Ngai Tahu." Te Runanga o Ngai Tahu is comprised of the Papatipu Runanga of Ngai Tahu.³⁷
• The repealed Runanga Iwi Act 1990 which attempted to introduce a system of tribal registration and recognition for the purposes of government devolution policies.

As can be seen these models have been changed, rearranged, amended or obliterated by various laws of the New Zealand Parliament passed at the whim of successive governments. They have remained subordinate to and dominated by the Crown. This has been the history of Maori self-government in New Zealand. The consequence now is that constitutional change needs to take place in order to expressly affirm Maori rights to the expression of sovereignty and self-government guaranteed by the Treaty of Waitangi.

³⁵ See Waikato Raupatu Claims Act Commencement Order 110/1999.
36 Te Runanga o Ngai Tahu Act 1996, Preamble & s 14.
³⁷ Te Runanga o Ngai Tahu Act 1996, s 9.

III. CURRENT MODELS BEING DISCUSSED

There have been a number of models for Maori self-government promoted at the national and local level. These include:

National

• Full independence and a restoration of full Maori sovereignty — Requires a form of constitutional change which would require either a written constitution reallocating power in favour of Maori or alternatively for Maori to rise up and take back power by revolutionary means. This model is one that would see the development of a Maori paepae/forum operated by reference to mana tangata, mana wairua and mana whenua. The legal system and the Parliament as we know it will no longer have lawful legitimacy. It is a model that has been promoted by the "tino rangatiratanga" movement."
• Three House Parliament, Tikanga Maori House, Tikanga Pakeha House and the Treaty House. This model would require changes to the current constitutional arrangements detailed in the Constitution Act 1986, the Standing Orders of Parliament and the Cabinet Manual. It would also require a radical review of the current constitutional conventions that govern constitutional behaviour in Parliament, Cabinet, Government agencies, the judiciary and the functions performed by the Governor-General. It would probably only be achievable by a written constitution. It does not need to result in the declaration of New Zealand as a republic."
• Maori Parliament like the Sami Parliaments in Europe. These bodies are advisory only and could be achieved by simple legislative enactment.⁴°
• National Policy Body similar to the Aboriginal and Torres Strait Islander Commission which is a national policy body and service delivery agency comprised of elected members — the Maori model that is being promoted would provide independent advice to the Crown and assume responsibility for programme service delivery. It was last discussed at Hopuhopu, Hamilton in 1998. All this would require is the passage of a simple law by Parliament. This model could be achieved by simple legislative enactment.'

" The Tino Rangatiratanga Movement is an ad hoc collection of Maori organizations committed to the restoration of Maori sovereign authority over Aotearoa/New Zealand and as a model it can be described as reformist.

" This bi-nationalist reformist model has been promoted by Professor Whatarangi Winiata of Te Wananga o Raukawa and the New Zealand Maori Council.

0. This bi-culturalist model is one where the proponents are arguing for the contribution of Maori to decision making to be recognized and taken into account while leaving ultimate lawmaking authority with the Crown.

⁴¹ This model would fall again under the bi-culturalist category.

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• Written constitution for New Zealand that would incorporate a reference to the Crown's obligation to adhere to the Treaty of Waitangi and the development of a national sovereign or subsidiary Maori body politic of some form, while also providing for tribal self-government on a par with local government." It would also require a radical review of the current constitutional conventions that govern constitutional behaviour in Parliament, Cabinet, Government agencies, the judiciary and the functions performed by the Governor-General. It would probably only be achievable by a written constitution. It does not need to, but could result in the declaration of New Zealand as a republic.
• Increasing the Maori seats and developing more Maori parties. This would require a change to the current electoral boundaries of the Maori seats and would be achievable by statutory amendment to the Electoral Act 1993."

Local and District Level

• Developing tribal governments in the same way as the Indian/First Nation Governments in the USA and Canada. Indian tribes in the USA are recognised as domestic dependant sovereign nations with exclusive authority over their territories subject only to federal oversight and jurisdiction." Many tribal nations in the USA are formally constituted under the Indian Reorganisation Act 1932 which provides for the establishment of tribal governments by elections. This form of governance has been further enhanced by statutes such as the Indian Self-Determination and Education Assistance Act 1973 and the Tribal Self-Governance Act 1994. These two statutes have enabled tribal governments to take responsibility for and management of federal government programmes on Indian reservations. In Canada, First Nation Band Governments are established and operate under the Indian Act 1985 to exercise a form of local government jurisdiction over Indian reserves held by the Bands. In New Zealand similar recognition of Maori Tribal Governments could be achieved by simple legislative enactment or by the development of a written constitution clearly allocating power to the different tiers of government.

42. This bi-nationalist reformist model recognizes the aspiration of all peoples to a form of self-determination and shared law making authority.
43. This model would see the continuation of the current status quo with a significantly increased number of Maori seats and therefore greater participation of Maori in the political process.
44. See Johnson v M'Intosh 21 US [1823] USSC 22; (8 Wheat.) 543 (1823); Cherokee Nation v Georgia 30 US (5 Pete.) 1 (1831); Worcester v Georgia (6 Pete.) 515 (1832); US v Wheeler [1978] USSC 44; 435 US 313 (1978).

• Empowering tribal trust boards or other Maori bodies to become local governments under the Local Government Act 1974 and the Resource Management Act 1991.⁴⁵ Under this model they would exercise all the powers and functions of local governments. Under the current Local Government Act 1974 there is provision for this to happen where there is sufficient ratepayer support.⁴⁶ No constitutional change would be necessary for this model but a statutory amendment to the current laws would be required.

IV. WHAT ARE THE CHANCES OF CONSTITUTIONAL CHANGE UNDER

LABOUR

Some indication that there may be room to further the debate on constitutional change has been signaled at the national level. On 7-8 April 2000 the Institute of Policy Studies (IPS), Victoria University of Wellington organized the "Building the Constitution" Conference. It was promoted as an opportunity to bring together "opinion leaders" throughout the country to conduct a national debate on the New Zealand constitution. It was the desire of the organisers that the Conference could begin the process of:

• Outlining a work programme for research;
• recommending to the Government and Parliament ways in which politicians might usefully contribute to the debate and the Building the Constitution project;
• establishing a modest independent constitutional commission which might promote future debate and research, seek modest funding for such debate and research, commission research, act as a central post box for other events and initiatives so all involved in the debate can be kept informed and offer assistance to organisers of future events.

The Conference was funded principally by private sponsors including the Crown Forest Rental Trust and supplemented by a small government contribution.

Approximately, one hundred participants were invited to the two-day meeting in the Legislative Council Chamber. Of those only 26 were Maori.

45 Under the RMA this is achievable within the current law pursuant to s 33 of the Resource Management Act 1991.

46. Local Government Act 1975, Part IIB where under s 37Z0 a Maori tribal authority can
    initiate a reorganization proposal to constitute a new district or region where 10% of 10,000 (1,500) electors resident in the district petition for the proposal in the case of a district reorganization proposal or where 10% of 50,000 (5,000) electors petition for the proposal in the case of a regional reorganization proposal.

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Of the 40 papers presented only 7 papers were written by Maori.' As the majority of contributors were pakeha, this was very much a Conference concerned with what constitutional reform might look like in the eyes of pakeha New Zealanders. However, the Maori participants did take a very active role in the debates and that is reflected in the summary of the Conference written by the IPS Programme Director."

A. The Current New Zealand Constitution

Although the Treaty of Waitangi is often described as the "founding document" of our Constitution, according to orthodox legal thought, the New Zealand Constitution is "unwritten", a term that:"

...is shorthand for saying the Constitution is not contained in any one document that is nationally known and upheld as "the Constitution". Our Constitution has several sources: Acts of Parliament (both Imperial and New Zealand), prerogative instruments, decisions of the Courts, customary international law, the law and custom of Parliament, conventions of the Constitution and diverse practices and understandings of executive government. In the absence of entrenchment or "supreme law", the Constitution is flexible and may be altered by ordinary parliamentary process. The only exception is under the Electoral Act 1993 which requires a referendum or a special majority of the House of Representatives to alter certain sections of the Act.

The Conference was divided into two days. On the first day the speakers were asked to address a number of issues that were designed to provide a context within which to review two main ideas for constitutional reform. The second day dealt with the substance of what the majority of participants and presenters were concerned with, namely whether New Zealand should:

1. become a republic;
1. adopt a written constitution.

In effect these two ideas became the focus for presenters and papers and discussions were centred on whether these were good ideas or bad ideas, the role of the Treaty of Waitangi and what consequential reforms would be necessary to the executive, parliament, the office of the Governor-General,

47. These papers can be accessed on the interne at http://www.vuw.ac.nz/inst-policy-studies/conferences/conferences.html.
48. Grimes A. "Thematic Summary" in "Building the Constitution" Conference, 7-8 April 2000 http://www.vuw.ac.nz/inst-policy-studies/conferences/summary.html.
49. Joseph P. "The Legal History and Framework of the Constitution" in "Building the Constitution" Conference Paper, April 2000 at http://www.vuw.ac.nz/inst-policy-studies/conf/.

1999 Maori and Constitutional Change 23

the judiciary, local and regional government and the electoral system should either or both options be adopted.

B. Presentations

Maori presentations focused on the Treaty of Waitangi and what the values and framework for constitutional change might look like." Professor Mason Durie provided a way forward beyond the Conference by suggesting the establishment of two constitutional commissions. The Maori Commission would consult with Maori regarding their aspirations for constitutional change, commission research and report to Maori and the Crown.

Non-Maori presentations focused on the substance of what reforms may be needed in the thematic areas of the conference." Generally non-Maori presenters paid little attention to developing a process that would move these ideas forward into the public domain for debate. Consequently, the great majority of the non-Maori present did not know where to take the results of the meeting. At the concluding session, the Chair of the meeting did suggest there was a case for some sort of small commission or foundation that might facilitate a continuation of the debate. It could do this by: collecting information and making it available to the public; putting people in touch with each other; helping facilitate seminars, forums and conferences; perhaps commissioning research. It would best be funded from non-government sources, out of reach of politicians with agendas. It could have a small (unpaid) board of people of standing, with a secretariat provided by some neutral body, such as the Institute Policy Studies. No vote was taken on this suggestion.

However, most of the Maori participants met on the last day of the Conference. They resolved to establish a Working Party to convene a national Maori Hui to discuss whether there should be established a Maori Constitutional Commission and if agreed, to appoint Maori Commissioners. Professor Mason Durie was asked to organise the Working Party.

C. Impact of the Conference on Government Policy

Although this was not a government conference it is important to note what the Prime Minister's views were on the subject. In her opening address the Hon. Helen Clark noted that New Zealand has been undergoing a process of constitutional change in two key areas, the Treaty of Waitangi and the

" See Annex 1 for Summary of Maori Papers.

31. The thematic areas of the "Building the Constitutional" Conference were "What Makes Our Constitution" and "What We Should Now Make of Our Constitution."

electoral system. When commenting on the need for further change she said:

There is of course a lot of sense in the old saying that "if it ain't broke don't fix it". It seems to me that there is nothing particularly broken about the way our arrangements work at present but they are quaint. It is that quaintness which will eventually spark more debate, if not now then sometime in the future. Generational and demographic change makes that inevitable.

She stressed that the Government has no official view on what the future shape of the country's constitutional arrangements should be. She indicated that Government would only be interested in constitutional change should a public mood develop in favour of such change. It is unlikely that there will be much movement from non-Maori who attended the Conference to ensure the debate on constitutional reform moves into the public domain. The implications for Maori are that unless there is a broad ground swell of unified support for constitutional change from as many Maori tribes and communities as possible, it is unlikely that the Government will review current constitutional arrangements.

V. FUTURE DIRECTIONS

It is necessary to start consulting with Maori on the different constitutional change models that are being promoted at the national and local levels. Research commissioned by the Commonwealth Foundation indicates that Maori are more likely than non-Maori to want change.⁵² They have also internalised the aspiration for self-determination. Maori claimants before the Waitangi Tribunal argue the right to exercise rangatiratanga under article two and point to evidence of the Crown's violation of that right." Consequently, Maori aspire to have their right to rangatiratanga recognized in one or other of the models described above.

It is the contention of the authors that constitutional change is necessary if we are to progress these Maori aspirations forward. However, this requires the development of a process that will be transparent and which will win the confidence of Maori. The idea of a Maori Constitutional Commission that will go out and discuss the various options with Maori and bring Maori to a consensus on the best option to suit their needs is a necessary first step.

52. See Te Korowai Aroha and Auckland Unemployed Workers Union Civil Society in the New Millennium — New Zealand Report Prepared for the Commonwealth Foundation (Unpublished 1999, Wellington).

⁵³ New Zealand Maori Council v Attorney-General, supra n 18.
1999 Maori and Constitutional Change 25

In the interim Maori should be working to create an environment that will support the Maori position once it is finalised. For example Maori could encourage the Kohanga Reo trust and kura kaupapa to develop children's programmes around the theme "The Treaty of Waitangi is Our Constitution" or "Maui says its time for Constitutional Change" etc. Maori can encourage visual and performing artists to continue building social awareness for constitutional change, we can prepare and present talks for Maori communities etc.

Maori have the power to unite — Tihei Mauri Ora.

ANNEX 1
SUMMARY OF MAORI PAPERS

Annette Sykes of Te Arawa argued that it was time to commit to building a new relationship starting with decolonising ourselves as a nation by grappling with the guilt from our past practices in order to construct a new world deeply rooted in our diversity. There is a need, she argued to make a collective commitment to restitution and to a new non-colonial, mutual and negotiated relationship between Maori and immigrant peoples. The Treaty of Waitangi Vision. Facing up to the past means owning all the history of Aotearoa, rather than perpetuating the myth of white settlers creating civilisation in uncharted wilderness. Taking responsibility means understanding that the national wealth has been accrued at the expense of Maori, in ways that were legislatively mandated by governments acting on behalf of business and immigrant interests. Decolonising means recognising that, culture has been both a divisive and a unifying force internationally and learning from those experiences. She noted that the local conflicts most likely to escalate into broader wars are those between groups and states from different civilisations. The Treaty vision recognised this potential and provides a framework to overcome this risk. Finally she pointed out that decolonisation in the Aotearoa context means engaging in the perpetual hard work of maintaining relationships, not so that it can be circumscribed and terminated, but so that it can carry us all into the future. This new relationship should provide a framework for the elaboration of a non-colonial form of governance arrangement, and for the creation of a society in which the history and well-being of some is not secured by obliterating the history and well-being of others. This approach demands rethinking economics and ways to regain ecological as opposed to exploitative use and management of taonga (resources) and that constructing new political strategies that reinforce spiritual connections to this land as part of the Pacific peoples of the world. This paper was essentially a bi-nationalist reformist critique.

Moana Jackson, of Ngati Kahungungu and Ngati Porou, focused on the need to consider the values that underpin a vibrant constitutional system and he argued that rather than focusing on what the substance of constitutional change may look like, it is more important to consider the human values we would want as the building blocks for a different constitutional order. He noted that many of the necessary values which Maori often conceptualise in phrases such as mana atua, mana whenua, mana tangata, manaakitanga, and kaitiakitanga were once the cornerstones of the sovereign authority exercised by Iwi and Hapu. They were ideals that society aspired to, and
1999 Maori and Constitutional Change 27

they were realities that determined behavior and ordered political activity. They would almost certainly form the basis of a contemporary Maori constitutional ethos, and they could positively shape its relationship with the Crown. They would at least shape the institutional model developed to meet Maori needs. This paper was essentially a bi-nationalist reformist critique.

Roger Maaka and A. Fleras (both not present) warned that any proposed realignment of indigenous peoples-Crown relations is riddled with inconsistencies and contradictions as competing interests clash. This situation creates a state of uncertainty and expediency which is likely to persist until such time as conventional thinkers accept as "foundational principles" two consenting political communities, both of whom are sovereign in their own right, yet inextricably interlocked as partners. This paper was again a bi-nationalist reformist critique.

Caren Wickliffe, taking again the bi-nationalist reformist position, noted the calls from Maori for constitutional change. She argued that the objective of such a process should be to design a written constitution that reflects and implements the Treaty guarantees including providing for the recognition of a national Maori body politic made up of iwi/hapu representatives who exercise real and substantive self-government at the tribal and national level. She noted that other Maori may have a different view, as Maori do not have a common position on what the new arrangements should be. She called on the Crown to fund a series of hui whereby Maori can arrive at some consensus on the issue. Then, she argued, representatives of Crown and Maori should renegotiate the conventions and principles of New Zealand's ethereal constitution as full Treaty partners. If we are to reflect a truly substantive partnership in our constitution, this means structural realignment of current constitutional thought with Maori principles and structures of constitutionalism. In practical terms, this means that the Crown negotiators need to work in partnership with Maori for constitutional change. What is essential is to start the process of negotiation based on principles of mutual recognition and accommodation. Recognition of Maori rights under the Treaty of Waitangi, and then accommodation of the position of other Pacific peoples.

Justice Durie (although not present) argued in his paper that if there was constitutional change, it may be appropriate to recognise principles or rights that flow from the Treaty without presuming to foreclose on the Treaty itself by presenting those principles or rights as complete. He suggested that it may be appropriate to acknowledge Aotearoa/New Zealand as a place for all peoples while recognising at the same time that in the interpretation and administration of laws, weight shall be given to the status of Maori as

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aboriginal inhabitants and the Treaty promise to protect their interests. In such ways the Treaty is expanded upon, has honorable mention, continues to morally bind but is not incorporated into law save to the extent specified. He concluded by considering Maori norms and New Zealand's place in the Pacific, and he suggested that it is useful to remember that New Zealand Maori are part of a common Pacific family, the common descendants of ancient voyagers, sharing with Pacific peoples many common values. Both Maori and government links to the Pacific might be recognised.

Denise Henare argued from a bi-nationalist reformist perspective, that future arrangements should acknowledge the origins of New Zealand (the Treaty) in the future building of the nation. She made the point that the Treaty cannot be overlooked by Parliament but neither can it be tied down nor limited. There is need, she said to:

1. to grapple with the concept of the Crown;
1. to articulate what in New Zealand is the Executive;
1. to consider the role of the Legislature; electoral and voting systems;
1. to consider the role of the Courts (including the Privy Council at one end and the Maori Land Court at the other) - systems, structures and laws,
1. to respond to the recommendations of the Royal Commission on Electoral Reform(16), noting: "Maori desire for a measure of self-determination has been a constant theme in Maori-Pakeha relations since the Treaty was signed." recognising: "the constitutional position of the Maori people ... in our legislative processes and institutions." and also recognising that: "the issues will not become any easier as time passes, and we think it desirable to face the problems before their resolution becomes even more difficult."

When looking at models for accommodating Maori aspirations for self-determination Professor Winiata argued, as did the majority of other Maori present for reform, namely that institutional arrangements should be designed for the Crown and Maori to operate within their respective culture/tikanga while at the same time finding space common to both. He suggested three spaces for dialogue can be designed each with its own tikanga and/or paradigm.

1. the Crown House, also known as the tikanga Pakeha House;
1. the tikanga Maori House; and
1. the Treaty House.

Professor Mason Durie argued for open debate on the options for constitutional change, including the development of a constitutional
1999 Maori and Constitutional Change 29

framework and the establishment of two Commissions to progress the debate.

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