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Havemann, Paul --- "Reconciliatory justice for Indigenous Peoples in the Anglo-Commonwealth?" [2000] NZYbkNZJur 2; (2000) 4 Yearbook of New Zealand Jurisprudence 1

Last Updated: 11 April 2015

Reconciliatory Justice for Indigenous Peoples in the



The substance of this article is based on a presentation which contributed to a dialogue on Indigenous peoples' rights hosted by the Commonwealth Human Rights Initiative at the Institute of Commonwealth Studies, University of London, in July 1999.'

Unlikely as it may seem, London was a most fitting place for such a dialogue: it was there, more than 160 years ago, that perhaps the first official recognition and concern about the genocidal impact of colonisation on Indigenous peoples of the Empire was stated, in the 1837 report of the British House of Commons Select Committee on Aborigines. The Select Committee's recommended solution was a benignly meant amalgamation of the races, i.e. assimilation, but the consequences for Indigenous peoples in what we now call the Anglo-Commonwealth have been universally horrendous. Events since 1837 show the need for eternal vigilance over the actions of the powerful even where their best intentions are expressed. The human rights of Indigenous peoples the world over have been more often honoured in the breach than in their realisation — and this is true of the Indigenous peoples in the liberal democracies of the Anglo-Commonwealth.'

Some steps are now being taken towards building peace between Indigenous peoples, the dominant settler polities and the Crown. Conceptually, peace building is a complex transformative process for eliminating the sources of high and low-intensity conflict and promoting healing and trust.' I call this process 'doing reconciliatory justice'. This paper surveys examples of developments in the quest

I gratefully acknowledge the Institute of Commonwealth Studies, University of London for the collegiality, space and amenities enjoyed as Visiting Fellow (July —October 1999).

  1. Havemann, P, (Ed.), Indigenous Peoples' Rights in Australia, Canada and New
    Zealand, (Auckland: Oxford University Press, 1999).

Lederach, J P, Building Peace: Sustainable Reconciliation in Divided Societies, (Washington, DC, US Institute of Peace, 1997), x — xi; Consedine, R and Consedine, J, Healing Our History: the Challenge of the Treaty of Waitangi (Auckland: Penguin Books, 2001).

for reconciliatory justice and critiques them in terms of their contribution towards building peace. Peace building requires communication, consultation and cooperation between the parties and a sustained commitment to a sustainable future coexistence.'

Globally, non-discriminatory observance of human rights is now the basic test against which the promises of the powerful (e.g. the nation state) to honour their commitments to respect the rights of the powerless (e.g. Indigenous peoples) can be measured. It is my view that the Commonwealth is a most appropriate supranational body through which the capacity of member states to recognise, respect and fulfil their human rights obligations can be enhanced.

The new millennium needs to be the age of supra-national cooperation as it is most certainly the age of unprecedented global competition. Justice based on and grounded in human rights remains as important and as threatened as ever. The gap between the powerful (e.g. the nation state and the transnational corporations, or TNCs) and the powerless is set to continue to widen dramatically. Entrenched economic and political interests sustain and accelerate divisions, globally and locally. The digital divide suffices to illustrate this point. The UN Development Program's annual Human Development Report (1998) predicted that by 2001 an estimated 700 million people would have access to the Internet but that nearly all of these people would be in the OECD countries where half the GDP is knowledge based. Indigenous peoples are likely to find themselves in the category of 'have nots' when it comes to access and any growth in the GDP of the state in which they find themselves, unless major steps are taken to promote their inclusion in the network society on their terms.' The UNDP 2000 report for the year 2000 explicitly links the enforcement of human rights with human development for the 21" century.

Reconciliatory Justice

Building peace based on reconciliatory justice for Indigenous peoples requires a paradigm shift away from archaic, Westphalian, state-centred and hierarchised power-broking to relational processes premised on `horizontalised' politics.6 A

Mansfield, B, in Coates, K and McHugh, P G, (Eds), Living Relationships: The Treaty of Waitangi in the New Millennium, (Wellington, Victoria University Press, 1999), 207 — 209.

Havemann, P, 'Enmeshed in the Web? Indigenous Peoples' Rights in the Network Society', in Cohen, R and Rai, S (Eds), Global Social Movements, (London: The Athlone Press, 2000), 18 — 32.

  1. See for instance McHugh, P G, 'Law, History, and the Treaty of Waitangi', New
    Zealand Journal of History, (1997), 38 — 57.

central theme of this paper is the need for states to start, or in some cases persist with, honouring their obligation to engage in building peace with the first peoples to inhabit their territories by doing reconciliatory justice. For Indigenous citizens this means enforcing their human rights as peoples and as individuals. Reconciliatory justice for Indigenous peoples involves social inclusion of Indigenous peoples in political participation and prosperity, on terms defined by Indigenous peoples themselves. John Paul Lederach proposes a conceptual framework based on four quadrants for understanding and empowering the process of building peace through reconciliation:

Right relationships
Making things right

and Healing

Reconciliation has many facets and sustained dialogue is essential to it. The focus needs to be an holistic approach focused on rehabilitating or `habilitating' de novo the relationship between peoples. The concept of reconciliatory justice in this framework based on truth, mercy, justice and peace is a positive alternative to retributive justice. Fortunately for those who co-exist with Indigenous peoples, reconciliatory justice is the idea of justice to which most Indigenous peoples subscribe. It is merciful and involves recognition that 'we are all here to stay' for good or ill. Reconciliatory justice is predicated on an holistic approach to truth and restoration involving all parties in forward-looking problem-solving: the continuing coexistence of the harmed and the perpetrator of the harm is assumed, though with an altered balance of power.

In contrast, retributive justice involves punishment by death, incarceration away from society, banishment from society or the infliction of pain, with no commitment to reconciliation or towards the ongoing, face-to-face coexistence of the perpetrator and the harmed. Retributive justice is backward-looking and does not transcend

Lederach, J P, Building Peace: Sustainable Reconciliation in Divided Societies, (Washington, DC: US Institute of Peace, 1997) 30.

the stage of blaming, i.e. truth seeking and telling, in order to justify punishment; yet it lies at the core of the liberal legal ideology and enlightenment rationality which inform liberal democratic nation building. Perhaps this explains the hesitancy and tortoise-like pace with which settler societies have embarked upon reconciliation and restoration.

Essentially, truth requires acknowledgement in the form of an apology' to Indigenous peoples by majority communities and the nation state for past genocidal and ethnocidal harms; justice and peace will come from the recognition, protection and fulfilment of individual and group human rights of Indigenous peoples, including restoration to Indigenous peoples of their lands, autonomy and culture. Vitally, the onus of proving title to lands — belonging to the land and identity with land — must shift from Indigenous peoples to settlers and nation builders, who have masqueraded as the unchallenged titleholders and definers of what is right for far too long. Apology signifies that one of the first barriers to justice and healing and building peace, namely denial, is being overcome.

This paper will not attempt to address mercy. Mercy is the prerogative of those who have been wronged. From my observation of the Anglo-Commonwealth, Indigenous peoples have invariably come to the negotiating tables, invariably shown acceptance and forgiveness, and invariably provided support for the dominant polity to learn and understand about them and about what they have done. The basis of merciful interventions appears to be willingness to take an inter-generational perspective, to plan for the well-being of the seventh generation by envisaging a common, connected, peaceful future in which affinity and difference are sustainably reconciled.

Lederach astutely analyses the interdependent paradoxes inherent in the process of reconciliation that must be managed in building peace. His analysis encapsulates the challenge involved in managing the dynamic tensions within the truth — mercy — justice — peace quadrants. These tensions generate polarisations either creating a crippling impasse or synergies forming the basis of a new relationship. South Africa's Truth and Reconciliation Commission is an example of positive synergy. The currentAustralian Government's repeated denial of truth reflected in its refusal to say 'sorry' illustrates a crippling impasse.

Lederach reminds us that truth in the peace-building encounter between perpetrator and victim involves open expression of the pain caused by the one to the other in the past and a commitment to search for an interdependent future. Where truth is

8 Consedine, R and Consedine, J, Part II, "The Healing" in Healing our History: the

Challenge of the Treaty of Waitangi (Auckland: Penguin Books, 2001).

to be sought and mercy shown, there is exposure and shaming of the perpetrator as well as the letting go of grievance in favour of the interdependent future by the victim. Justice is done through redress, and peace is made through a mutual commitment to envisaging a common, connected future.'

Settler nation building: genocide, liberalism10 and denial

The Commonwealth now represents the progeny of British Empire. We who live in the Commonwealth claim to be a 'family of peoples' in the North and South, with shared yet divergent histories and experiences of Empire, colonisation, de-colonisation and globalisation, attempting to unite for the common good. Rhetorical, and sometimes actual, commitment to ideas about the value of liberal democracy is a shared legacy. This is the foundation upon which the commitment to human rights for everyone is established. Almost all Commonwealth states have ratified the major international human rights instruments of the post-World War 2 era; most are governed by political — legal institutions that are variations on the Westminster model; most aim to promote representative democracy and constitutionalism in some form; and most also operate legal systems based on the common law and promoting the ideal of the Rule of Law.

All states, whether they be the United Kingdom itself, the old settler dominions or the decolonised states of the 'new' Commonwealth, share another characteristic in common: they are modern states (states of the modern age spanning the last three centuries). They are products of recent processes of nation building in which a monopoly on sovereignty has been imposed over territory that is culturally diverse, i.e. home to multiple distinct historical state-free sovereign communities. The process of imposing this singular statist sovereignty in the name of 'nation building' has been a project almost invariably aimed to create an idealised and organic unity between 'the nation' and 'the people' where no such organic unity exists.

A pernicious design flaw in this process of nation building has been that the basic idea of 'the people' from whom the nation is supposedly forged generally fails to accommodate 'others' who do not fit into the mould of the dominant

Lederach, J P, Building Peace: Sustainable Reconciliation in Divided Societies, (Washington, DC, US Institute of Peace, 1997) 30 — 131.

  1. For a global overview see Mann, Michael, 'The dark side of democracy and the
    modern tradition of ethnic and political cleansing', NLR 235 May — June 1999, 18 — 45, also forthcoming in Barkawi, T and Laffey, M, (Eds), Democracy, Liberalism and War: Rethinking the Democratic Peace Debate, (Boulder Colorado: Lynne Rienner Publishers); and also see Rosenbaum, Alan (Ed.), Is the Holocaust Unique? (Boulder, Colorado: Westview Press, 1998).

majority. The ideology of majoritarianism, which is sometimes legitimated through the democratic process, pervades modern nations. Majoritarianism, whether manifested in liberal democracies or in more authoritarian systems of governance, has legitimated consistent discrimination against the 'others' with awful and dehumanising consequences. In liberal democracies a dual system has obtained, combining democracy for the majority and authoritarianism for the 'others' —except under apartheid in South Africa, of course, where the pattern was reversed.

To enhance the 'purity' of 'the people' and suppress diversity, the sovereign state, in the name of the majority, has deployed its monopoly of force and lawmaking power to legitimate a host of 'cleansing' processes. The form of harm perpetrated on Indigenous peoples ranges from murderous cleansing, i.e. genocide, to insidious processes of ethnocide involving the destruction and/or removal of `alien' cultures by means of induced and coerced assimilation, immigration and emigration conducted over many generations. Indigenous peoples represent the classic 'other' and have been the targets of discriminatory cleansings to eliminate or assimilate them in all parts of the Commonwealth.

Processes of peace building universally take place against the backdrop of a culture of denial of harm, for instance to Indigenous peoples." The culture of denial is shaped by greed, ignorance and the ideologies of superiority derived from science and religion that have served to de-legitimate and invalidate the rightful claims of the 'other' to enjoy their human rights to all dimensions of their individual and collective identity. This culture of denial divides settler from Indigenous communities throughout the Anglo-Commonwealth and is manifested in cycles of hostility often creating deep distrust. Denial is sustained by intense negative stereotyping. The culture of denial is dehumanising for denier and denied. For the latter, their personhood is denied, the harms they have suffered are negated, their legal rights ignored and their lands deemed the land of no one, terra nullius such as inAustralia (from 1788 to 1992). As for the deniers they must live a lie, and refuse to honour one of the basic tenets of their humanity, to do unto others as they would have others do unto them.

A classic illustration of the symptoms of denial emerges from the public debate over the preamble for a possible patriated Australian republican constitution. The former Chief Justice of Australia, Sir Harry Gibbs, is reported to have said 'One can only conjecture, for example, what effect might be given in legal proceedings

See Cohen, Stanley, Denial and Acknowledgement: The Impact of Information about Human Rights Violations, (Jerusalem: Centre for Human Rights, Hebrew University, 1995).

to the presumption that Aboriginal peoples were the original occupiers or custodians of Australia."'

Challenging the settler nation builders' culture of denial relies on disclosure and exposure of harm set against universally ratified human rights norms. Denial is the deeply pathological ideological" resource endlessly drawn upon in the nation state to evade guilt and responsibility for harms against Indigenous peoples, to stall reconciliation and restoration, and to perpetuate discrimination. A key element of building peace is truth seeking. To achieve anything against the powerful, the powerless need to embarrass them by naming, blaming, shaming and re-educating them. This in turn relies on human rights standards that can aid in defining harms and framing obligations and rights which human rights workers can use to advocate against breaches. Human rights provide the benchmark against which lapses of standards can be measured and claims publicised. Thus local and global public naming, shaming and blaming in terms of violations of human rights becomes the fulcrum by which to lever change to enforce human rights duties. Hence the obvious need for supra-national bodies like the Commonwealth to focus the spotlight of human rights standards on places where violations persist and to enhance the capacity of states to meet their human rights obligations. Such a process never ends: mercy, or forgiveness, is achievable only when peace building is predicated on truth. To demand that we forget the past and move on is to run the risk that the culture of denial will reassert itself and allow history to repeat itself. Building peace, however, cannot begin unless there is a commitment to vision a future together.

I readily acknowledge that universalising 'rights talk' is associated with the liberal democratic project, but it needs to be recognised that rights imply correlative obligations on all, including the powerful." Hence the language of duties ought to be just as well understood by those for whom rights talk sounds too individualistic, e.g. those nations in Africa and the `Asias' where duties within collectivities are a better-understood way of depicting relationships. So whether the discourse of rights or the discourse of duties seems more appropriate, the state is inescapably obligated to honour responsibilities to 'others' such as Indigenous People who are also citizens yet have, more often than not, been trampled over in the haste to nation build according to the blueprint of the majority.

  1. Lane, Bernard, 'Dangers lurk in new preamble', Sydney Morning Herald, 12 July 1999.

1' See Cohen, S, States of Denial: Knowing about Atrocities and Suffering (Cam bridge: Polity, 2000).

  1. Sen, A K, Development as Freedom (Oxford: Oxford University Press, 2000) 227246.

Surely no healthy nation can be built on the foundations of denial of genocidal harms to members of the polity? Truth is thus an essential building block for healthy nation building where cultural diversity is accepted and 'purity' seen for the dangerous mirage that it is. Each of the settler dominions has a history of fabricating nationhood in the image of a British imperial civilisation; each has a history of profound intolerance of diversity; each is bedevilled with a culture of denial; each has for the most part excluded Indigenous peoples from political participation and prosperity through discriminatory practices over many generations. It is worth repeating that these practices traverse the full gamut of ethnocidal and genocidal harms from outright war to murderous cleansing, and from coerced and voluntary immigration and emigration to coerced and voluntary assimilation. None of these societies has yet come to terms with the peace-building task of crafting a differentiated yet first-class form of citizenship for all, in a poly-ethnic nation in which the political and legal institutions empower Indigenous peoples to practice such citizenship. Nevertheless, there is some real as well as much gestural evidence that steps have begun to be taken towards building peace with Indigenous peoples through reconciliatory justice.

Towards Reconciliatory Justice: Australia, Canada and New Zealand/Aotearoa?

Applying Lederach's conceptual framework for building peace to the conflict between Indigenous peoples and the dominant settler polity and the Crown: truth involves truth telling about the harms, and acknowledgement and apology for those harms; justice involves reparation for harm in financial terms (while recognising that ethnocidal and genocidal harms are really incompensible), restoration of Indigenous peoples' land, and power to determine its use; and peace involves redesign of state political — legal institutions, and a process to empower Indigenous peoples to participate in their own governance and the government of the state as well as to accommodate new, hybrid, self and community identities.

Following is a brief and selective survey of recent steps towards building peace with the Indigenous peoples of the Anglo-Commonwealth.


The foundation of the Australian settler state's legitimacy was the convenient legal fiction that the continent was terra nullius to be acquired by occupation and to be ruled without any presumption that the rights, laws and lands of the original owners and occupiers merited recognition by the common law or the Constitution of 1901. This dehumanising fiction defined the relationship between settlers and Aboriginal and Torres Strait Islander peoples from 1788 to 1992, when

the landmark (in Australian legal terms) Mabo (2)15 decision of the High Court put the terra nullius doctrine to rest16 by acknowledging the possibility of doctrine recognising a pre-existing form of native title as a form of proprietary interest. This native title predates occupation and does not flow from the radical title of the Crown.

The onus of proof of such native title falls heavily on the shoulders of Aboriginal communities, diverting them and precious resources away from community empowerment and rebuilding into litigation. The courts and tribunals before which Aboriginal peoples have had to plead their cases have, by and large, erred on the literal and strict interpretations of elaborate tests required to establish 'title' in the eyes of the settler Crown. It seems likely that few of those harmed by genocide can satisfy the requirements of the test by virtue of the very nature of the two centuries of harm they have endured, notably dispossession and assimilation. Reconciliation and restoration seem like a pipedream as long as Indigenous people must justify their claims to belong to the country through demeaning, socially degrading" courtroom ceremonies while the settlers are presumed in law to have a legitimate title and while the dominant ideology of 'the nation' reproduces personal, official and cultural denial of history and contemporary events and processes.

Below are illustrations of the mixed and modest patchwork of processes and events one could associate with the process of reconciliation and restoration in Australia.


In 1975, the Senate passed a resolution acknowledging the Aboriginal and Torres Strait Islander peoples as having had original possession of the continent.

In 1981, the Senate Two Hundred Years Later report recommended a treaty and statement of reconciliation with Aboriginal and Torres Strait Islander peoples, to be known as the Makarrata.

15 Mabo v State of Queensland [1992] HCA 23; (1992) 107 ALR 1 (HC).

  1. In 1975 the International Court of Justice determined that the terra nullius doctrine was inapplicable as a mode of territorial acquisition in relation to any territory where there were Indigenous inhabitants: see the Western Sahara (Advisory Opinion) (1975) ICJ Reports 12.
  2. See Federal Court Justice Olney's comments on the Yorta Yorta People: 'the tide of history has undoubtedly washed away any traditional rights that indigenous people may have had...' Yorta Yorta v Victoria, NSW and Ors, Federal Court, 18/12/98, paragraph 126. This sort of judgement on living peoples has been likened to passing the death sentence on the juridical person so as to finalise the genocide.

The 1987 report of the Royal Commission on Aboriginal Deaths in Custody revealed the systemic discrimination against Aboriginal and Tones Strait Islander peoples in the criminal justice system, and linked this harm to ethnocide and genocide. The process of naming and blaming has led to no prosecutions but to many unfulfilled promises for criminal justice system reform.

In 1991, the Council for Aboriginal Reconciliation was set up with a ten-year mandate to achieve reconciliation.

The 1992 Mabo (2) and Ors v Queensland decision of the High Court ofAustralia included acknowledgment that Australia was not terra nullius and had indeed been occupied by the ancestors of Australia's citizens of Aboriginal and Tones Strait Islander ancestry.

In 1993 Prime Minister Keating's Redfern speech acknowledged the failure of White Australia to confront the history of atrocities committed against Aboriginal peoples.

The 1997 Human Rights Commission's Bringing Them Home report revealed the scale of the systematic separation of generations of Aboriginal and Tones Strait Islander peoples' children from their families for the explicit purpose of coerced assimiliation. These people become known as the 'stolen generations'.

It is notable that in response to this report Prime Minister Howard refused to make official apology for the record of state-sponsored forced assimilation amounting to ethnocide.


From 1976 to the 1990s the States and Territories passed so-called land rights legislation. The Crown conceded control over limited sections of territory to Aboriginal peoples under various forms of legal arrangement, though nowhere acknowledging it is theirs as of right due to their pre-1788 status as the original occupiers.

In 1985 Uluru (Ayers Rock) was handed back to the original owners in a joint-venture National Park.

In 1993 the Federal Government established a fund to assist Aboriginal and Tones Strait Islander peoples unable to establish native title under the Native Title Act 1993 (estimated to be 90% ofAboriginal and Torres Strait Islander peoples) with funds to buy land.

In 1993 the Native Title Act gave statutory recognition to the native title recognised in Mabo (2). The Act contained stringent tests for peoples to qualify as titleholders and established a system of state and national native title tribunals to make fmdings on title claims.


In 1967 the Referendum on the Constitution allowed an amendment giving the federal Commonwealth Government conjoint power over Aboriginal and Tones Strait Islander affairs and empowering and obligating the Commonwealth Government to honour international human rights laws in national law.

In 1989 the Aboriginal and Torres Strait Islander Commission replaced the Department ofAboriginal Affairs (operative since the 1970s) and this Commission ofAboriginal and Torres Strait Islander leaders was mandated to manage Aboriginal affairs. However, the Opposition had forced the Government to drop a clause which recognised Aboriginal peoples as 'original owners and occupiers' from the preamble of the enabling legislation creating the Commission.

In 1999 the culture of denial was actively lived out in debate about the proposed republican Constitution's preamble: I8 the proposal to include reference to Aboriginal and Torres Strait Islander peoples as 'original occupiers and custodians' threatened to jeopardise any reference to their existence at all.


Canada's Indigenous peoples — the First Nations, the Metis Nation and the Inuit — have enjoyed recognition of their presence and rights to their land supposedly since the Royal Proclamation of 1763 through numerous pre-Confederation (1867) treaties, 12 post-Confederation treaties and a host of 'modern' treaties under the Federal Government's Comprehensive Claims policy after 1973 and the Inherent Right to Self-Government policy after 1996. The Royal Commission on Aboriginal Peoples concluded nonetheless that the legacy of ethnocidal practices of dispossession, coerced and voluntary migration and assimilation still required radical steps towards restoration and reconciliation. Denial was most obviously manifest in the Trudeau Federal Government's notorious 1969 White Paper: it contained the proposal to abolish the special status of Indians under the Treaties and Indian Acts and thereby, at a stroke, make them like other Canadians — equal

18 See former Australian Prime Minister Gough Whitlam's 2nd Vincent Lingiari Memo

rial Lecture at Northern Territory University entitled 'Dragging the chain 1897 —1997' for a very relevant, critical overview of denial in Australian constitution-making, past and present.

citizens under the law, without reconciliation or restoration in any form. The Alberta Chiefs branded this the 'citizens minus' approach and called for a 'citizens plus' approach. '9

As it has on the Indigenous peoples ofAustralia, the onus of proving title to their lands and the legitimacy of self-government of their nations has fallen heavily on First Nations, Metis and Inuit peoples of Canada. Costly and demeaning processes of proving themselves and their claims have diverted them from community empowerment and rebuilding. Recent developments of Federal Government policy, notably the Gathering Strength policy and Statement of Reconciliation (1998) made in the wake of the findings of the Royal Commission on Aboriginal Peoples (1996), reflect a significant watershed in the relationship. Some still suggest, however, that Government policy is more about the extinguishment of claims than about the start of a new partnership between peoples.


In the 1973 case of Calder v Attorney General of British Columbie the Supreme Court of Canada acknowledged that Indigenous peoples may have native title which is independent of the grant of the Crown derived from their occupation of lands since time immemorial. This signalled the need to consider land claims seriously and led to the Comprehensive Claims policy.

In 1996 the Royal Commission on Aboriginal Peoples identified the magnitude of great wrongs done to Aboriginal peoples and made firm, active and clear acknowledgment of these. It recommended the abandonment of a simplistic `equality' approach which denied Aboriginal Peoples' status as unique political entities whose place in Canada is unlike that of any other people.

In the 1997 case of Delgamuukw v British Columbie the Supreme Court of Canada castigated the court below for its failure to take aboriginal history seriously in adjudicating on the legitimacy of claims.

The 1998 policy statement Gathering Strength — Canada's Aboriginal Action Plan included a statement on reconciliation and an explicit apology for the Federal government's role in the ethnocidal residential school system.

  1. Weaver, S M, Making Canadian Indian Policy: the hidden agenda 1968 — 1970 (Toronto: University of Toronto Press, 1981) 183 — 184.

20 Calder v Attorney General of British Columbia (1973) SCR 313.
21 Delgamuukw v British Columbia (1997) 3 SCR 1010.


In 1975 the Comprehensive Claims policy allowed for monetary reparation to accompany land settlements.

In 1991 the Special Claims Commission was established.

In 1998 the Gathering Strength plan included a commitment of NZ$350 million explicitly for community healing programmes.


In 1975 the Comprehensive Claims policy formed the basis for a substantial number of land settlements: twelve major settlements that included restoration of some or all of the lands claimed and self-government were concluded by 1998. These include significant settlements of territory and agreements on self-government such as the James Bay Cree of Northern Quebec agreement, the Nisga'a agreement, agreements covering almost all the Yukon Territory, and the consequent creation of the Inuit's self-governing Nunavut Territory in 1999.

In 1982 the Constitution Act embodied a new constitution for Canada (`repatriated' from Westminster) which provided for recognition of Royal Proclamation and treaty rights (section 25), recognition and affirmation of existing aboriginal rights (section 35) and inclusion of Aboriginal leaders in subsequent discussion of constitutional amendments (section 37) in as much as these affected Aboriginal peoples directly.

The Supreme Court of Canada has played the significant role in defining 'Aboriginal rights' under section 35 — though one must remember that this arises from protracted adversarial litigation pitting impoverished First Nations against the Crown. Aboriginal people carry the onus of justifying their claims. Initially, the Court offered broad and generous canons of interpretation of settler law in Guerin (1984) and Sparrow (1990); but later, more and more rigorous requirements, as in Van der Peet (1996) have started to come into play.22

Attempts to amend the Constitution in the 1990s to `constitutionalise' the Aboriginal right to self-government were supported in principle by governments at the Charlottetown constitutional amendment conference but ultimately got nowhere following defeat in a national referendum. There was opposition to the concept of

22 Guerin v R (1984) 2 SCR 335, R v Sparrow (1990) 1 SCR 1075, Van der Peet v the

Queen (1996) 137 DLR (4th) 289 (SCC).

self-government at the provincial government level and the majority of Canadians opposed the implications of implementing this idea, which amounts to a third tier of government. Possibly, hostility to change on the part of the majority was prompted more immediately by Quebec's concurrent claim to be a 'distinct society'." Quebec's bid for quasi sovereignty was aimed at giving the province a status superior to other provinces in the Canadian Confederation. So that First Nations' legitimate claims would not get lost in constitutional and intergovernmental wrangling, the Federal executive enunciated recognition of the inherent right to self-government as an Aboriginal right.

In 1984 the Canadian Parliament's Penner Report recommended self-government for Aboriginal peoples.

In 1993 the British Columbia Treaty Commission was set up. Between 1993 and 1999 it considered over 50 separate claims by First Nations to territory and self-government.

In 1995 the Federal Inherent Right to Self-Government policy built on the Comprehensive Claims policy.

In 1998 the Federal Gathering Strength action plan, as mentioned before, included NZ$350 million towards community-based health and healing, to be allocated by Indigenous People.

New Zealand/Aotearoa

The British House of Commons Select Committee on Aborigines had reported in 1837. Its proceedings had brought to the attention of British humanitarians the widespread atrocities that seemed to be a concomitant dimension of colonisation. This had the effect of encouraging a treaty-based approach to the settlement of New Zealand. The British Crown obtained a Declaration of Independence in 1835 for a substantial group of Maori chiefs to signify that they were sovereign peoples with whom a treaty could be concluded. In 1840 the Treaty of Waitangi was duly concluded.

The Treaty aims to avert the 'evil consequences which must result from the absence of necessary Laws and Institutions alike to the native population and Her subjects'. The first article is highly contested. The British clearly intended it

23 See Webber, Jeremy, Re Imagining Canada: Language, Culture, Community and

the Canadian Constitution, (Kingston & Montreal: McGill — Queens' University Press, 1994).

to give them substantial governmental power and probably sovereignty. Maori assumed it empowered the Crown to govern British people, not Maori. The third article, in relation to Maori, 'extends royal protection and imparts to them all the Rights and Privileges of British subjects'. The second article guarantees to Maori full, exclusive and undisturbed possession of the lands and estates, forests, fisheries and other properties they individually and collectively own. To protect Maori from dishonest dealings the Crown identified itself as having a right of preemption over land Maori planned to sell.24

The differences between Treaty rhetoric and the reality are stark. Maori have never enjoyed any measure of self-determination since 1840, though they were assigned four parliamentary seats in 1867. Most land is not in Maori hands any longer. Much of it passed to settlers by dubious deals and unlawful confiscations constituting breaches of the Treaty partnership and the Crown's obligations — as, for instance, in the notorious New Zealand Settlements Act 1863. This process was made a whole lot easier by the relegation of the Treaty to the status of 'a simple nullity' by Chief Justice Prendergast in 1877 in the case of Wi Parata v the Bishop of Wellington." The Chief Justice determined that no binding pact could be concluded with mere 'barbarians and savages'. This convenient deconstruction of the Treaty as a statement of constitutional—legal obligations effectively persisted until the mid-1970s — that is, for a century!

Maori resistance and the shaming of the conscience of the majority led to the creation of the Waitangi Tribunal under the Treaty of Waitangi Act 1975. The Tribunal is a standing inquiry empowered to make findings and recommendations on Treaty breaches (though not orders per se) and to recommend principles for honouring the Treaty. Since Judge (now Justice) Dune was appointed to the Chair of the Tribunal in 1982 it has played a very significant part in truth finding and telling. A detailed history of Treaty breaches has emerged from the reports of the Tribunal. These reports26 are scholarly documents addressing legal, cultural and historical matters with equal facility and rigour. Half the members of the Tribunal are Maori. The proceedings of the Tribunal allow Maori claimants to present their claim in Maori on their home marae, and the Tribunal enables them to collect historical data. Historians and other experts for both sides may be cross-examined but the process is not a degradation ceremony premised on the assumption that Maori must justify their existence. Maori land, as a category of land separate from

/4 McHugh, P The Maori Magna Carta: New Zealand Law and the Treaty of Waitangi (Auckland: Oxford University Press, 1991) 79-80.
2% Wi Parata v the Bishop of Wellington [1877] NZJurRp 183; (1877) 3 NZ Jur (NS) 72 (SC).

To conduct a free web search by keyword, to browse or read the entire text, see the

database of the Waitangi Tribunal <> .

general land and held collectively by Maori has always been a feature of New Zealand law; separate land legislation (the latest version being Te Ture Whenua Maori Act 1993) has been enacted and a Maori Land Court has existed since the 1860s.

Doing justice and building peace are up to the Crown, which has followed Tribunal recommendations about truth in some but not every instance. One of the major settlements, the Tainui Raupatu settlement concluded in 1995, was negotiated directly with the Crown outside the Tribunal process but probably benefitted from the climate of negotiation engendered by the Tribunal process and findings.

Truth in terms of acknowledgment and apology by the Crown is settlement-specific, though one can infer apology and acknowledgment of the dishonouring of the Treaty from the creation of the Tribunal under the Treaty of Waitangi Act 1975. This Act signified that the political and legal culture of denial articulated in W' Parata in 1877 was over, at least in official discourse.

Building peace in terms of the redesign of state political — legal institutions and process has not been particularly evident in recent decades, though the devolving of Maori policy matters to the Ministry of Maori Development under a Maori cabinet minister and the increase in the number of Maori seats from four to five represent modest and gradual reforms. Ideas for a Maori upper house of review have foundered. Since 1987 Maori has been one of the official languages of New Zealand and, officially, since the late 1980s fidelity to Treaty principles should inform all aspects of governance in New Zealand."

The Waikato Raupatu Claims Settlement model

I conclude this essay by describing the microcosm of a peace-building process found in the Waikato Raupatu Claims Settlement Act 1995. The Act is the culmination of a process which began in 1865 when the Crown purported to lawfully confiscate the lands of 33 hapu (sub-tribes) of the Waikato Tainui iwi (tribes) whose lands stretch from the southern edge of the Waikato plain northward to South Auckland. This land is estimated to have a current market value ofNZ$12 billion. Queen Elizabeth II assented to the Act in person, signifying the personal

" New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 703, 713;

Brookfield, F M, Waitangi and Indigenous Rights: revolution, law and legitimation (Auckland: Auckland University Press, 1999) 152-156.

dimension of the Crown's apology.28 The pretext for the 1863 — 5 confiscation (raupatu) was retaliation for Waikato Tainui's alleged rebellion against the Crown during the Land Wars in the region. There was no such rebellion.

Waikato Tainui sought reconciliation and restoration very much in terms of reconciling the paradoxes in Lederach's conceptual framework. Waikato Tainui iwi's negotiating principles29 were: restoration of land for land — i riro whenua atu, me hoki whenuau mai — and reparation in money as acknowledgment by the Crown of their crime — ko to moni hei utu mo to hara.

The fact that for Tainui the post-settlement process has been highly politicised and litigious should not detract from the model the Tainui Raupatu settlement represents. It seems to me that managing the contradictions between tradition and modernity in the context of governance of the iwi was never going to be easy. The steps taken to get to a platform of process for building peace are as follows:


The 1995 Act is the outcome of a long process of truth seeking and telling in which Waikato Tainui have long been exonerated of the charge of rebellion and the basis of the confiscation is acknowledged to have been false. This process of truth seeking and telling encompasses, for instance, the (Sim) Royal Commission of 1926, the Waikato — Maniapoto Maori Claims Settlement Act 1946, the Manukau report of the Waitangi Tribunal in 1985, and the judgment of the New Zealand Court of Appeal in the CoalCorp" case in 1989.

The preamble of the 1995 Act explicitly acknowledges the history of efforts by Waikato Tainui to get justice. It records the steps in detail and the part the Crown has played in a litany of unsatisfactory outcomes, from petitions in the 1860s onwards.

Section 4 sets out the apology given by the Crown in Maori and English and includes the two principles regarding money and land set out above. The apology is unreserved, and acknowledges the breach of the Treaty, the wrongfulness of the confiscation, the fact that Tainui were never rebels, and that Waikato Tainui have indeed contributed positively to the work of the Crown.

IM Robert Joseph, of Tainui, a PhD candidate in law, must be acknowledged for invalu

able help with materials and collegial discussion in preparing this section.

See for details the Tainui web site: <> .

Tainui Maori Trust Board v Attorney General [1989] NZLR, 513, 528 (CA).

The apology concludes with the Crown expressing its intent to begin a process of healing and a new age of cooperation with Waikato Tainui and the movement which has sustained their struggle for justice since the 1850s, the Kingitanga.


The 1995 Act returns 39,000 acres of Crown land and includes an undertaking by the Crown to purchase a further 90,000 acres to make up for the acreage confiscated. In fact, a total of 1,200,000 acres were confiscated. The settlement does not restore to Waikato Tainui their river, the Waikato, which is the largest in New Zealand and flows through their country; nor have interests in sub-surface minerals been restored. Redress in financial terms amounts to NZ$170 million plus interest on the principal sum of the settlement.


The Deed of Settlement vests the lands in the first Maori King, the late Pootatau Te Wherowhero. No individual can succeed to these lands: a new title has been created as a tribal title; the land vests in three trustees and can be alienated by them only with the agreement of 75% of the beneficiaries, who number more than 12,000 people. Te Wherowhero title land cannot be alienated in the process of obtaining resource consent under the Resource Management Act 1991, nor do the Maori Land Court or the Waitangi Tribunal retain jurisdiction over matters dealt with under the settlement.

The statutory Trust Board was to be abolished and Waikato Tainui were to agree collectively on a mode of governance for their management of their assets and lands post-settlement. A new body (Kohanganui) drawing on three representatives from each of the 33 marae of Waikato Tainui will constitute a decision-making body for the management of the settlement.


Building peace requires the redesign of processes and institutions of governance to represent a plural society of peoples, not just 'the people'. New models of governance and differentiated citizenship" are required to manage the tensions between affinity and difference in the context of partnership-based coexistence.

Reconciliatory justice implies restoring the balance between powerful and

31 See for some useful ideas: Kymlicka, Will, (Ed.), The Rights of Minority Cultures,

(Oxford: Oxford University Press, 1995) and his book Multicultural Citizenship: a liberal theory of minority rights, (Oxford: Clarendon Press, 1995).

powerless so that the burdens and benefits of nation building by colonisation are radically redistributed. A gestural closing of the accounts is not enough. Indigenous peoples have borne the burden of social exclusion and genocide while the dominant majorities have achieved relative prosperity. The criterion for the redistribution of benefits to Indigenous peoples should be fulfilment of all their human rights (social, civil, political, economic, developmental and cultural). Such rights are both the means whereby self determination is achieved and constituitive of self determination. Only self determination based on these foundations can be relational not confrontational. The universality and indivisibility of all human rights for all peoples requires a horizontalised politics that holds difference and affinities in balance as the basis for coexistence and cooperation. Peace building must be based on partnership for the future grounded in truth, justice and mercy.

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