Jul 3, 2011

Release of the Wai262 report

Yesterday was a significant day for Maori across the motu (New Zealand). Firstly, Saturday marked the signing of a “relationship agreement” between Tuhoe and the Crown. Treaty Settlement negotiations between the two parties fell apart last year when John Key ruled out the return of Te Urewera National Park and then, quite gratuitously, insulted Tuhoe at a dinner in Ngati Porou. Hopefully the agreement marks the final stages in settlement process for Tuhoe. Secondly, but most significantly, the Waitangi Tribunal released their findings on the Wai262 claim. The report, titled Ko Aotearoa Tenei, deals with a series of potentially explosive issues including the legal nature of tangata whenua relationships with native flora and fauna.

The Wai262 claim was originally lodged in 1991. All but one of the original six claimants have passed on. For a good overview of the history of the claim see this post at Ahi-ka-roa. Today I want to deal with the political ramifications of the report.

Firstly, I must preface my comments and let you know that I have not read the report. I intend to, but then again my intentions do not always translate into action. Give me a break though – the report is massive and doubt that I will have time to even sift through it. Anywho, the Wai262 claim has always been something of a sleeper issue. No one really knew what to expect. Would the claim result in radical recommendations that would challenge the nature of our legal system and challenge the assumptions New Zealanders hold regarding Maori and Maori relationships with their resources and taonga?  Or would Maori, as is usually the case, come out disappointed and the status quo is maintained?

In my opinion, the status quo has been maintained. Of the recommendations I have seen nothing strikes me as innovative or, indeed, effective. The recommendations are certainly sweeping, for example the report calls for action on issues as dissimilar as Maori intellectual property rights and Maori health, yet nothing appears that strong. The report speaks of advisory committees and compulsory consultation, but these are recycled and, in many cases, failed ideas from the 80’s and 90’s. Many Maori, including myself, were hoping for a fundamental shift in the nature of the Maori/Crown relationship and an innovative approach to recognising Maori interests. Advice and consultation are glorious notions and can be effective when the conditions suit and both sides are willing to engage. However, more often than not, Advisory Committees and compulsory consultation relegates Maori to secondary partners. Maori and the Crown, or whoever it may be, never met on equal footing. Advice and consultation is merely a box to be ticked – not a serious step in the process.

Having said that, Maori must realise that the Tribunal is constrained. The Tribunal, and by extension Maori, must work within a Western legal framework. Maori must work for recognition on Pakeha terms, we cannot be recognised on our own terms and seeking to do so does not serve an overarching practical purpose. We cannot expect a system that does not reflect our values or our traditional systems to satisfactorily recognise our rights and interests. The Waitangi Tribunal must also work within the international legal system. The tribunal cannot recommend actions that may offend international legal norms. A good example of Maori rights failing to gain proper, or what we as Maori deem as proper, recognition is the foreshore and seabed. Maori possess mana whenua over the foreshore and seabed and this is recognised by the New Zealand legal system as customary title. Under a Maori system our mana whenua would manifest as complete authority and control over the foreshore and seabed. But under the Western legal framework which Maori operate within mana whenua manifests as rights to perform traditional activities and sometimes rights to control how resources are used. This is unfair, but Maori must also realise that there are competing interests in the foreshore and seabed, as well as other areas where Maori are concerned, and sometimes Maori interests are not dominant.

The Tribunal had 20 years to formulate ideas, policies, mechanisms etc to adequately recognise Maori interests. Of course the Tribunal was, as I have said, constrained. But our legal system allows a fair amount of flexibility. After all Parliament is bound by no one but itself, and even this is debateable, and the Courts are fluid and, for the most part, responsive to social change. The Tribunal did not have to work so unimaginably within existing norms.

Politically speaking, I think the report will fizzle out. We are now witnessing the initial bang, for example Joshua at Maori Law and Politics points out the notorious redneck shedevil Muriel Newman was all over Radio New Zealand spitting anti-Maori venom in every direction, but over time the venom will lose its sting. The report is not, in my opinion at least, radical enough to excite widespread concern among the rest of New Zealand. Don Brash and Winston Peters will do their best to whip up a frenzy, however the conditions a not right. John Key currently leads a wildly popular government with the Maori Party. New Zealanders appear comfortable with the idea of a right wing/Maori government and comfortable with the idea of advancing Maori rights. The best example is probably the signing of the UN Declaration of the Rights of Indigenous People. The UNDRIP was a major and, if you care to read the text, radical step forward in terms of Maori rights. However, New Zealanders were and are comfortable with it. Furthermore, the media treatment of the report is, by my estimate, overall net positive and this will contribute to the public mood.   

The Maori Party and the Mana Party will also make a political football out of the issue. The competition for the tino rangatiratanga vote will largely come down to who can spin the most attractive rhetoric. Hone will almost certainly call for the implementation of all recommendations – he may even rubbish the report as weak. Whereas the Maori Party will probably run the line that they will push for the implementation of the recommendations “at the table”. Both parties have to make the case that they can give better effect to the report. I tend to think the tino rangatiratanga vote will tend towards the harsher rhetoric that Hone adopts. Judging from what I have seen and heard from prominent tino rangatiratanga advocates they are disappointed. Moderate Maori will tend towards the Maori Party rhetoric that stresses result. Although the result may not be all that is hoped for, progress is progress I guess.

Labour’s reaction to the report will be interesting. I have no doubt the Maori Caucus will want to give effect to the report, but the Leaders Office will probably be running scared. Labour will have to pick their position carefully. The party cannot risk scaring off the blue collar redneck vote, while at the same time the party needs to maintain their share of the Maori vote. I guess the compromise position is to welcome the report, but not commit to anything specific.

Once again I have written far more than I intended. For excellent analysis of the report keep your eye on Carwyn Jones at Ahi-ka-roa and Joshua Hitchcock at Maori Law and Politics. These guys are more qualified to speak on the report than I.


  1. it boils down to this: the Pakeha electorate will not stand any attempt to implement a 50-50 partnership anywhere, because it will (rightly) see that as deeply undemocratic. And for most New Zealanders, not just white ones, it is axiomatic that democratic values trump anything Maori claim.

  2. Surely, any claims by Maori, using the treaty as a backdrop and to have any legitimacy would need to be made by a quorum of at least 75% of the descendents of the Rangatira who signed on behalf of their respective iwi ?

    Because as is, no body can truly claim to represent the interest of Maori as a whole and the treaty doesn't allow for Maori to be repesented as one united peoples.

    I think that's where Hone's Maori Parliament would become a valid vehicle for speaking on behalf of all Maori about all things Maori,

    Who knows, maybe that's what the Iwi Leaders Group are morphing into ?

    Though it would be good to have a publicly available membership of the ILG to peruse and ascertain their whakapapa'd status as Rangatira to then deal with matters of iwi sovereignty with any real Mana and authority.

  3. We cannot expect a system that does not reflect our values or our traditional systems to satisfactorily recognise our rights and interests.

    Big call there. You appear to be saying that Maori can never be satisfied unless the existing basic legal framework of New Zealand is radically changed. That's something I mostly hear coming from the words of Maori-bashers like Brash and Newman - the idea that Maori are actually seeking to overthrow New Zealand's system of government.

  4. No, Hugh. I should have expressed myself in less ambiguous terms. What I am trying to say is that Maori will never be wholly satisfied and that is something Maori must live with. I am perfectly comfortable with the current arrangements and I believe, in most cases, the current system can serve the interests of Maori where necessary.

  5. ‘You appear to be saying that Maori can never be satisfied unless the existing basic legal framework of New Zealand is radically changed. That's something I mostly hear coming from the words of Maori-bashers like Brash and Newman - the idea that Maori are actually seeking to overthrow New Zealand's system of government.’

    I don’t think many Maori would really expect this to happen, but this ‘overthrow the system’ mentality and rhetoric stems from deep frustration with the inconsistent and often unfair way the Crown (govt) interacts with Maori. If the Crown was to begin to conduct itself with integrity and consistency then you might find a more moderate point of view being widely adopted among Maori.

    ‘What I am trying to say is that Maori will never be wholly satisfied and that is something Maori must live with.’

    Given the injustices of the past, I guess this is understandable, but it is the fact that even now, Maori have to fight tooth n nail just to get into the conversation, and when they do, their concerns and point of view are mis-understood, mis-quoted, and deliberately marginalized by the mainstream media among others.

    I agree the current system should be able to serve the interests of Maori, IF it wasn’t fundamentally setup to oppress Maori aspirations.

    This report seems to be the latest ‘toothless’ gesture. (not that I have read it)

  6. Netana, it's one thing to say "Maori aren't happy with the way the legal system is working right now", it's another to say "Maori aren't happy with the legal system". Morgan appeared to be saying that the legal system could never fully meet the needs of Maori even if it were functioning optimally.

    I'm not criticising Maori for frustration with the way the system delivers and I have generally seen musings about different systems as a manifestation of that frustration. What Morgan was saying didn't appear to be reconcilible with that, hence my surprise.



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