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Dawson, John --- "Waitangi Revisited" [2006] OtaLawRw 13; (2006) 11 Otago Law Review 339

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Waitangi Revisited

(edited by M Belgrave, M Kawharu and D Williams,

Oxford University Press, 2005)

This collection is not so much a revised edition of its predecessor, Waitangi: Maori and Pakeha Perspectives (OUP, 1989), as a new work on a similar theme. The earlier work, edited by Hugh Kawharu, was a landmark in the field. It contained, in particular, an important set of legal essays, an analysis of the Waitangi Tribunal's approach to our history, and an interesting set of tribal perspectives on Treaty affairs, including a southern perspective from Tipene O'Regan. It concluded with a classic essay by Bruce Biggs on the texts of the Treaty, which were dissected word by word. Much has happened since, but the significance of that book endures.

The present editors have wisely chosen to produce a different kind of work. It is larger, containing 20 essays, has a broader focus, and only 6 of the authors from the previous work remain. Its contents reflect the increasing complexity of Treaty debates and the sad fact that we are not much closer to their resolution than we were in 1989, due largely to the lack of consensus between Maori and non-Maori on the issues.

The book is in five parts, covering general Treaty matters; their relevance to social policy; hapu and tribal perspectives; customary rights and tikanga; and constitutional affairs. There are some notable omissions: there is no non-tribal urban Maori perspective to speak of, no South Island perspective, and no anti-Treaty perspective at all.

The most valuable aspects of the work are the detailed cover provided of recent New Zealand political and legal history, and the picture painted by the essays as a whole. This picture reveals how Treaty-based claims tend to start out as bilateral disputes between the government and Maori interests, but then evolve rapidly during the settlement process into multi-lateral disputes that raise new issues about governance and representation within Maori society. In the course of this process, serious strains have often been imposed on Maori interests who find themselves caught in the cross-currents between iwi-based claims against the Crown, on the one hand, and disputes within Maori society over the distribution of assets, on the other. As a result, it is not surprising that throughout the book almost as much attention is paid to relations between Maori collectives as is paid to relations between Maori and the Crown. This is the central variation in theme from the earlier work. It might even be said that some essays in this volume veer so far from Crown-Maori relations that they do not bear on Treaty matters at all.

It is not possible to review all the contributions. In the opening section, I particularly enjoyed Belgrave's response to those historians who criticise the Waitangi Tribunal's 'presentist' take on our history without comprehending fully the limits its statutory functions and powers impose. Three very different case studies then follow of Treaty settlement processes, from the hapu or iwi point of view. These essays are particularly valuable as a group and they form an excellent

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teaching resource. In particular, Hugh Kawharu gives a fascinating update on the post-settlement fortunes of the Orakei hapu in central Auckland, while Tuuta explains in detail the 'squeeze' put on the Chatham Islands community, and its surrounding fisheries, by the combined weight of new government fisheries policies and the commercial ambitions of the mainland tribes.

On the legal front, Bennion provides a useful history of foreshore and seabed issues before the passage of the recent legislation, while Young presents an interesting argument that the Native Land Court in the nineteenth century violated the Treaty's guarantees to Maori by 'turning customary relationships into property rights'. From the start, Young argues, the Crown's approach to Maori society and resources was 'highly pragmatic' and 'legal process had to be reconciled with power relations in the colony' (253). McHugh provides a lively overview of the changing constitutional landscape in New Zealand, but I was not wholly convinced by his argument that a constitutional convention now prohibits legislation being passed that is contrary to the Treaty's terms. Things might have been moving in that direction, but that contention surely cannot now survive the passage of the foreshore and seabed legislation.

Sharp is typically lucid in his account of three competing 'constitutionalisms' currently in vogue. The incompatibility of their premises, he argues, explains why Treaty settlements cannot be 'markedly coherent', and why, in making the necessary compromises, 'practitioners will find it hard to justify exactly what they are doing' (324). He issues the warning that any 'democratic' resolution of the Treaty's place in our constitution may not be welcomed by Maori. His conclusion is that, due to the lack of any consensus in the nation on Treaty matters, it would be prudent to postpone any major attempts at constitutional change. Ani Mikaere follows with a virtual manifesto of Maori sovereignty, illustrating perfectly one of the constitutionalisms Sharp describes.

Brookfield debates radical critics of his well-known argument that the revolutionary overthrow of the Treaty by the Crown in the nineteenth century has now been legitimated, at least in part, by the benefits of the rule of law and the passage of time. David Williams closes the book with a wide-ranging discussion of the prospects for greater legal pluralism in New Zealand, via greater recognition within the law of Maori customary rights. Williams draws attention to the breadth and potential significance of the Wai 262 claim, concerning Maori knowledge and intellectual property rights, as does Maui Solomon in his essay. In Williams's view, the resolution of this claim would provide a welcome opportunity for the state to 'take positive steps to assist cultural survival of Maori' (376).

Perhaps the most engaging chapter, however, which I have left till last, is the transcribed interview with Shane Jones, who recounts his journey from radical Maori activist, through the upper echelons of the civil service in the 1980s, to graduation from Harvard, followed by the extraordinary achievement of presiding over the Treaty of Waitangi Fisheries Commission (or TOKM) during the final setting of the formula for the distribution of Maori commercial fisheries assets. Here one finds an original Maori voice, a man comfortable in many different modes of thought. This is essential reading for those wishing to understand the positions likely to be taken by this highly-talented new MP.

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Overall, the tone of this collection illustrates the wide gap that still exists between Maori perceptions of Treaty entitlements and the general perspective of non-Maori New Zealanders. As the recent election campaign has revealed, 20 years of 'Treaty jurisprudence' have not bridged this gap. Instead, it remains the central political fact influencing race relations in the country. Attitudes remain largely polarised and, despite a great deal of discussion, little middle ground has emerged. Not surprisingly, in these circumstances, few authors in this book have suggestions to make concerning processes or structures through which a greater degree of consensus could emerge.

As I write, in the aftermath of the bitter 2005 election, the political spectrum on Treaty issues looks something like a yard glass. There is a bulge at both ends and a very thin centre in between. As non-Maori have the weight of numbers in the country and almost complete control of the media, it does not seem likely that the deeper kind of Treaty partnership sought by many contributors to this volume will soon emerge.

Nevertheless, for those wishing to be well-informed on the details of recent Treaty politics in New Zealand, including the impact of settlement processes on the different elements within Maori society, there is a great deal of useful material in this book. It could be a set text for several different courses at the university level.

John Dawson, Professor, Faculty of Law, University of Otago.