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Durie, Hon Justice Sir Edward Taihakurei --- "Custom and the formation of tribal authorities" [2011] NZYbkNZJur 13; (2010-2011) 13-14 Yearbook of New Zealand Jurisprudence 152

Last Updated: 25 April 2015

CUSTOM AND THE FORMATION OF TRIBAL AUTHORITIES

THE HON JUSTICE SIR EDWARD TAIHAKUREI DURIE

I. CUSTOM AND TRIBAL GOVERNANCE

It is interesting to reflect on how Pacific custom law reflects a particular social structure of small, autonomous communities generally unburdened by external controls or manorial rights. Instead of the sanctions, rules and principles of an imposed law, one finds an internalised value system with notions of ideal conduct, personal honour, respect for others, inclusiveness, kinship and other bonds for maintaining relationships, shared spiritual beliefs and the priority given to the interests of the community.

It is also interesting to reflect that shared values, ethics and beliefs, and close relationships and trust between community members, are seen as desirable ingredients for a sound civil society; and sound civil societies are seen as necessary for the effective operation of the state.¹

I wish to discuss proposals to provide an infrastructure to support Māori tribal and urban communities, having regard to the values described and bearing in mind their capacity to deliver services for the benefit of both government and the affected people. The proposals were set out in a draft bill for Māori corporations, or waka umanga.² The corporations referred to here are like municipal corporations which manage not just commercial business but also the affairs of a community.

1 J Coleman “Social Capital in the Creation of Human Capital” (1998) 94 American Journal of Sociology S95; RD Putnam “The Prosperous Community; Social Capital and Public Life” (1993, Spring) 13 The American Prospect, 35; F Fukuyama Trust: The Social Virtues and the Creation of Prosperity (The Free Press, New York, 1995).

2 A waka umanga is a vessel for an enterprise or undertaking, here used as an equivalent for Māori corporations. The bill discussed in this paper was introduced into the House of Representatives on 21 November 2007 and referred to the Māori Affairs Select Committee

11 December. It was reported back on 8 September 2008 but did not receive further parliamentary consideration; it was discharged on 23 December 2009 (http://legislation. govt.nz/bill/government/2007/0175/24.0/DLM1593863.html).

A. Purposes and vision

To date, general legislation for tribes has not been successfully maintained.³

We have inherited a history of conflict rather than co-operation between Governors and tribes, an opinion that tribes are a threat to state sovereignty or to the incorporation of Māori into settler society. The proposals for tribal entities today, however, arise from the need for legal entities to manage the assets given in settlement of historic tribal claims.⁴ The need for entities for Māori urban communities arises from the accumulation of group assets by those communities, particularly from contracts for the delivery of government services. Tribal entities are proposed to engage in a range of activities including:

• business ventures;

• representing the tribe to central and local government or private interests;

• providing services in health, housing, education, law and cultural maintenance; and

• promoting tribal judicial systems.

Generally, however, at least among Māori leaders, a primary concern is to maintain the customary value system. This is not only for sentimental reasons. The Tū Tangata programmes of the Department of Māori Affairs and other initiatives from the early 1980s have proven that programmes for Māori in community-building, service delivery, law observance, health, housing, land management and education have worked best when customary values have been proselytised and upheld as the font of strength and pride.

This experience suggests there could be advantages for Pacific states as well, in utilising traditional infrastructures and voluntary, community participation. Among other things, the strengthening of customary processes, to conform to human rights, could provide a cost-efficient alternative to the totally centralised legal systems that burden Western states.

The waka umanga proposals sought to give legal backing to customary institutions and norms. They stemmed from reports on Māori custom and Māori settlement entities developed by the New Zealand Law Commission substantially through the efforts of persons serving on the Mātāhauariki

3 The Councils established under the Maori Councils Act 1900 were under-resourced and the Runanga Iwi Act 1990 was repealed a year after it was enacted. There were a number of private statutes creating trusts for specified tribes.

4 The claims referred to are claims under the Treaty of Waitangi Act 1975, commonly called

“Treaty claims”.

Advisory Panel, Justices Baragwanath and Heath, lawyers Denese Henare and Professor Richard Sutton and social anthropologist, Dame Joan Metge. Helen Aikman QC and I were involved in the final report on waka umanga.

ii. WAKA UMANGA

A. Waka umanga are purpose-built

The Commission’s opening consideration was that legally mandated corporate entities representing tribes provide certainty for the tribes and for those wishing to deal with them, and protect the tribal leaders involved from personal liability. The Commission’s further view was that the existing legal structures of companies, trusts and incorporated societies were inadequate. Each was designed for specific problems, none of which had anything to do with tribes. And so the Commission developed the concept of waka umanga as purpose-built statutory entities with corporate personality and perpetual succession, not unlike municipal corporations.

B. Waka umanga would not replace the tribe

But what would this do to the customary dynamic? Would it mean a takeover by commercial and legal technocrats? It was plainly important that the customary dynamic should not be affected, and to that end, it had to be made clear that the tribe itself would not be “corporatised”. Accordingly, waka umanga were structured as bodies to represent the tribes, not to replace them; and subject to their charters to serve as servants of the tribes and not as the tribes’ controller. Their charters must reflect a tribal vision, not just a business ethic. They must answer to tribal hui and follow policy directions set by the people themselves.

C. Cultural match

Their structures must also be culturally compliant. Harvard University studies contend that Native American tribal authorities do best when there is a good match between the organisation’s structure and the tribal culture.⁵ For example, scales of economy usually compel several clans or hapū to combine under one corporate structure. In that event it is important that the combinations match the descent group compacts of tradition. Similarly, federal structures may be

5 See for example Stephen Cornell Five Myths, Three Partial Truths, A Robust Finding and Two Tasks (Project Report Series, Harvard Project on American Indian Economic Development, John F Kennedy School of Government, Harvard University, 1994). See also Stephen Cornell, Miriam Jorgensen and Joseph P Kalt The First Nations Governance Act: Implications of Research Findings from the United States and Canada (Native Nations Institute, Udall Centre for Studies in Public Policy, The University of Arizona, Tuscon,

2002).

needed to adequately respect the autonomy of the primary unit of traditional society, the many local hapū; and distribution policies may be needed to resist the un-traditional tendency to centralism. Accordingly, the Commission took the view that waka umanga should not only fit with tradition, but they must be effective in supporting it.

D. Independence from government in formation

Although it is probably not relevant to the Pacific generally, I should add that a major factor in the Commission’s thinking was that Māori tribal structures were in fact being shaped by government policies for the settlement of claims. That was plainly contrary to sound principle. The Law Commission said so long ago.⁶ In June 2007 the Waitangi Tribunal found the same.⁷ But, unfortunately, what is not so well known is that the draft Waka Umanga Bill, with which many Māori had been involved, proposed a solution.

E. Women, corruption and good governance

In other respects waka umanga could and should promote change. For example, something needs to be done, and can now be done, to promote gender equity, to uphold democracy and to stamp out corruption, bullying and the manufacture of convenient cultural inventions. I would argue that custom is dynamic and able to change, that it has changed enormously in fact, and that most changes have in fact strengthened the customary system. I would argue that change is valid so long as the primary values, of whanaungatanga and the like, are adhered to, and so long as the changes are eventually accepted by the affected communities. I would further contend, notwithstanding some controversy, that the changes wrought by modern history have been, for the most part, beneficial, helping to preserve custom law rather than weaken it.

The topic is important because waka umanga would be statutory bodies and as such their charters and operations must fit with human rights, gender equity, good governance standards and fair, transparent and democratic processes. And so standards were set for the tribes and the tribes were encouraged to adopt those standards themselves.

6 New Zealand Law Commission Waka Umanga: A Proposed Law for Māori Governance Entities (NZLC Report 92 June 2006), para 4.92-4.104. Available online <www.lawcom. govt.nz/project/maori-legal-entities>.

7 Tāmaki Makaurau Settlement Process Report, Wai1362 June 2007.

F. Fairness in formation

I should mention that corruption was also a significant issue for the Commission because of the evidence of inadequate notices, stacked hui, railroading and voting manipulation in past tribal entity formation. For the lack of some law on entity formation there was nothing the courts could do, but the Waka Umanga Bill proposed a law to remedy this state of affairs. The promoters of tribal corporations would have been obliged to devise and comply with democratic formation plans with transparent and just processes, all of which might be vetted by the Māori Land Court.

However, that should not be seen as part of the measures to change custom. It is rather to change some current, aberrant practices, and to restore the ideals of personal integrity that custom expects of its leaders.

G. Choices

While I have mentioned that minimum standards are required for honesty in formation and operational processes, prescription in the Waka Umanga Bill was otherwise kept to a minimum. The thrust had been to leave the tribes with adequate scope to fashion their entities in ways that best suit them. The Commission had sought mainly to provide the coat hanger on which the tribes can hang a coat of their own fashioning. This was meant to give effect to the principle of autonomy in article 5 of the draft declaration of indigenous peoples’ rights.⁸

Indeed, whether or not a waka umanga was formed at all was up to the tribe. The intention was not to tell people what to do but to add another tool to those already available for those who find it useful.

H. Dispute resolution

Another large concern was the many bitter and protracted disputes over the right to represent the tribe and manage its business. It was of major concern for the Law Commission that for lack of any legal avenue to manage the problem, strong arm tactics were becoming the order of the day. Put simply, the law was failing Māori people.

8 The Declaration was adopted by the United Nations General Assembly on 13 September

2007. Article 5 reads: “5. Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State”. Available online <www.un.org/esa/socdev/unpfii/en/declaration.html>, accessed

16 November 2011.

The Commission’s preferred solution has been to promote internal dispute resolution. Access to courts should be a matter of last recourse, and with the courts determining fair process, rather than policy issues, or determining a just process by which tribal members can resolve policy issues themselves.

In the past, it was inevitable that the courts should take over from the customary way, for once state governance became effective in the districts, there was nothing to make the customary system binding. Today, however, Western governments have recognised that for many matters, perhaps most matters, mediation and arbitration is the better way to go. For Māori, these processes must serve to restore the custom law focus on building harmony and balance in community relationships.

Accordingly, mediatory mechanisms were proposed to manage formation and operational disputes, to constrain unnecessary court actions and to make mediated solutions binding. In time the skills acquired would no doubt be useful in other areas of disputes or complaints about conduct, as well. In addition, to put some reins on those who would run too readily to the courts, with complaints about tribal activities that are sometimes unfounded, provisions were proposed for complaints to be referred to independent complaints officers in the first instance, to inquire and if need be to seek some resolution.

I. Urban groups

In addition, the Commission had to deal with the reality of urbanisation. It concluded that waka umanga should also be available for tribal and multi- tribal urban groups as well. These have played critical roles in maintaining Māori culture among the urban dwellers and generally in reaching out to urban Māori. Waka umanga were really designed for groups with substantial assets, but some urban groups now fit the bill, often because of their many years in running government service contracts.

iii. concLusion

As I have said, it would have been optional to create a waka umanga. But there were incentives to do so at the time, and would be now if the idea were to be revived. I would argue that waka umanga would provide a better assurance for affected parties that the entity is properly mandated and is lawfully able to represent the relevant tribal group; that they would give greater confidence for members and outsiders that matters will be handled honestly and according to

reasonable standards of good governance; and that there would be some greater assurance to the tribe that complaints and disputes will be better managed and managed within the tribal framework.

But most especially I would argue that there is some greater assurance that tribal entities would be formed with more independence from government, that they would be formed in greater accordance with custom, and that they would be better structured to uphold and strengthen the important values of custom law.

EDITOR’S POSTSCRIPT. As I noted in the introduction to this volume, this overview of the proposed Waka Umanga legislation was highly topical when it was delivered at the Tūhonohono symposium, and legislation embodying these ideas was already in preparation. The Waka Umanga (Māori Corporations) Bill was subsequently introduced to the House of Representatives on 11

December 2007, when the House was sitting under urgency, and received its First Reading and committal to the Māori Affairs Select Committee when the session resumed on 13 December. It was vigorously opposed by National Party speakers on a number of grounds, principally that there was no evidence that Māori wanted it, it was unnecessary, and it represented a return to a patronising colonial attitude on the part of government. It was a government-sponsored bill and supported by both Labour and New Zealand First speakers on its introduction, while speakers from the Green and Māori parties were ambivalent but willing to let it proceed to the Committee stages. It emerged from the Committee on 8 September 2008, with key aspects removed, for example the concepts of waka pū (entities established by tribal groups which under certain conditions could seek recognition as legitimate representatives of those groups) and waka tumaha (entities established by Māori associations) and the provisions relating to them, and establishing a new but undefined category of “Māori collectives” to replace them, without giving such entities the capacity to become “legitimate representatives” of an iwi. The NZ Parliamentary Library Bills Digest noted that in the amended legislation the waka umanga would “have little status distinct from incorporated societies ... except that they must have a Māori membership ...”.⁹ The bill did not proceed to second reading before Parliament adjourned in 2008, and was finally dropped from the order paper without debate under the new National Party-led government in December 2009.

Justice Durie’s presentation and the subsequent fate (for the time being at least) of the proposals he articulated provide an excellent example of the challenges faced by innovative approaches based on one set of customary concepts when these may disrupt alternative accommodations of custom and

9 NZ Parliamentary Library Bills Digest 1700 at 2.

modernity which have attracted their own vested interests. One National Party member described the proposals as based on “dream-time imagery in the minds of cultural fellow travellers and social engineers”,¹⁰ a comment clearly directed at the author of the paper, his associates at the Law Commission and colleagues, many of whom were, as Justice Durie notes in this chapter, closely connected with the co-hosts of the Tūhonohono symposium, Te Mātāhauariki Institute. A more measured critique came from Te Ururoa Flavell of the Māori Party at the conclusion of the Select Committee’s deliberations:¹¹

The Māori Party was very interested to hear the views of the submitters, and voted for the bill at its first reading to ensure that the views of hapū and iwi could be heard by the Māori Affairs Committee of Parliament. We noted that our concerns about rangatiratanga and due recognition were also very much top of mind for hapū and iwi.

Given the substance of concerns and opposition voiced by hapū and iwi on the

Waka Umanga (Māori Corporations) Bill, the Māori Party cannot support it.

More work is needed to solve the inadequacies of current legal structures. For any such programme to be fruitful, it will need to proceed from a kaupapa Māori basis, and also address wider concerns with Treaty settlements policy.

A contrary view, however, was later expressed by Dr Robert Joseph, a participant in the Symposium, Mātāhauariki researcher and contributor to this volume, which underlines the importance of Justice Durie’s contribution to this publication:¹²

Whether the new developments in Māori governance such as the recent Waka Umanga Bill would have ushered in a new era or a new error for contemporary Māori governance depended on the voice of the people and politicians. But the current failure of the Waka Umanga Bill to be seriously considered in Parliament and among many of the tribes is a grave cause for concern. Contemporary Māori governance has entered into a new error – maintaining the hegemonic status quo, denial, a high propensity for litigation, and even paternalism – but the key difference this time is that it has occurred with the people’s consent.

10 Christopher Finlayson, 644 NZPD at 13878.

11 Waka Umanga (Māori Corporations) Bill, 2008 No 175-2, as reported from the Māori

Affairs Committee, Commentary, at 21.

12 “Contemporary Māori Governance: New Error”, in NZ Law Society Running and Governing

Māori Entities, Part II (NZLS, Wellington, 2010).