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Argument against Iwi Claims to Constitutional Recognition and
9 September 2012
recent years iwi have been extremely successful in pursuing
their demands for public resources and political power. The
intriguing question is how to explain such total success given
that many New Zealanders, both Maori and non-Maori, are
increasingly concerned about the run-away juggernaut of iwi
success is based on the unquestioned belief that there is a
direct continuity between the traditional tribe and
contemporary iwi. This alleged continuity is used to justify
iwi claims for the inheritance of resources and for various
levels of governance. The Treaty is promoted as the document
of inheritance and the claims are also supported by references
to Common Law. But is it the case that today’s iwi
corporations are the same entities as the tribes of the past
and therefore entitled to inherit the past?
because iwi claim that they are the revived traditional tribe
in modern form does not make it so. It is a belief that should
be challenged and there are two sound reasons for such a
challenge. Each reason is sufficient on its own to dispute iwi
claims for public resources and for a stake in governance.
first reason concerns the fundamental difference between
traditional and modern societies. All traditional societies
are based on kinship social relations and on one’s birth
status in the kin-group. You were born into the group and that
defined your identity and how you lived your life. In
contrast, modern societies are based on the ‘social
contract’. Social groups, even those with long traditions
like religions, are associations of individuals. Their members
are free to join, to leave, and to decide how strongly they
wish to identify with the group.
shift from status to contract is at the heart of the great
tradition-modern divide. It is a shift that has changed all
social groups fundamentally and this includes iwi in New
Zealand today. The change is to do with the relationship
between the individual and society. While traditional
groupings are non-divisible, present-day iwi, like all modern
groups, are associations of individuals. This means that
contemporary iwi have the same rights and responsibilities as
other groups in society; neither more nor less.
second reason to challenge iwi claims to inherit the past is a
different one but equally important. It concerns the
relationship between the political and economic dimensions of
our society. Traditional societies do not have a separation
between the political and economic spheres. Modern democratic
societies like New Zealand’s do. This is to ensure that all
individuals, according to their status as citizens and
regardless of their unequal economic position, have an equal
say in politics. Contemporary iwi are private economic
corporations claiming public political status. An economic
corporation claiming political rights eats at the heart of the
political – economic separation that is essential for
have iwi persuaded so many that there is a continuity between
the traditional tribe and the modern iwi corporation? How have
they persuaded us that, on the basis of this alleged
continuity, they should inherit from the past? The answer is
that there does appear to be a continuity. All of us living
today are descended from traditional people and we maintain a
number of values, beliefs and practices that come from the
past. But that is a superficial continuity. The fundamental
difference is a structural one. Modern society is based on the
individual as the bearer of political rights and on the
separation of the political sphere from the economic sphere.
skill of the iwi case lies in the use of two extremely
successful strategies. One is the creation of a new
interpretation of the Treaty of Waitangi as New Zealand’s
founding document and as a ‘partnership’ between the
government and iwi. The second is the appeal to Common Law. I
will deal with the Treaty interpretation strategy first.
re-interpretation of the Treaty of Waitangi as a
‘partnership’ between two political entities dates from a
Court of Appeal decision in the late 1980s stating that the
Treaty established a relationship ‘akin to a partnership’.
It is now accepted as true by many people. But the partnership
idea is neither true nor logical. I have referred in other
writing to David Round’s comment about Treaty partnership
and will repeat it here because it captures brilliantly the
illogic of the idea. ‘If there were to be a partnership of
Maori and the Crown, then by definition Maori could not be
subjects of the Crown. One cannot be a partner and a subject
at the same time (Round, 2011).
the idea that the Treaty is New Zealand’s founding document
is at best premature. A nation’s founding document is of
great symbolic importance to New Zealand. Like the campaign
for a new national flag it requires widespread and ongoing
discussion, possibly over several generations. Whether a
single document is selected for this symbolic honour or
whether a number of historical documents and events are
regarded as significant and given a special status is in
itself an historic task. It is one made difficult by the
removal of specific history topics from the national
curriculum. In order to decide what is historically
significant, one must know New Zealand’s history and what
choices are possible. Currently,
individual teachers and schools are now able to decide which
history topics are of significance. This can lead to
selections based on teacher preference, student interest, or
some other arbitrary reason.
national discussion about what is significant and the criteria
for deciding significance is needed. It should be led by
historians of New Zealand’s past, who may or may not be
based in this country and fully engage politicians, the media,
and the people. To put the Treaty forward as the founding
document without this discussion is to pre-empt the outcome.
However, the iwi focus on the Treaty is not actually about its
symbolic value to the nation. Iwi use the Treaty as a document
of inheritance for their own strategic reasons. It symbolises
the idea of a continuity to the traditional tribe despite the
fact that there can be no real continuity between the
traditional world and the modern world for the reasons I
new interpretation of the Treaty is also supported by the iwi
focus on Article Two. It has led to the second article about
resource possession driving the meaning of the first and third
articles. The effect of the isolated method of interpretation
is to lose the integrated meaning of the articles. The
concepts of sovereignty in Article One, of resource possession
in Article Two, and citizenship in Article Three, tend not to
be considered in totality, that is, with the meaning of one
Article being dependent upon the meaning of the others. This
has enabled Article Two to achieve an undeserved dominance.
second strategy that has proved invaluable for iwi success is
the hugely effective use of legal language and procedures.
This has served to embed the idea that iwi ambitions are true
and just. It makes good use of New Zealanders’ right and
proper respect for the law. However that respect has a less
healthy side. It can produce a uncritical acceptance of ideas
that use the weight of legalese. Some words have gained an
unearned respect and their use can stop people identifying and
criticising the political interests that are promoted in legal
arguments using those words. ‘Common Law’, ‘Customary
Law’, and ‘English Common Law’ are regularly used by iwi
for this reason. It pulls the wool over our eyes.
iwi are in a long tradition of elites using this legal
antiquity strategy for their political ends. In the 18th
Century Edmund Burke referred to the ‘powerful prepossession
towards antiquity, [in] the minds of all our lawyers and
legislators and all of the people whom they wish to
influence’. (Burke, cited in Hampsher-Monk, 1992, p.267).
English Common law argument - used politically since the early
seventeenth century – states that since precedent has always
prevailed in English legal practice, our law, including our
constitutional law, must be immemorial, or at least derived
from ever more ancient models.’ It is ‘not the fact that
the English constitution, as it now stands, actually is as old
as is claimed, that is the point; it may not even be true. The
important point is the propensity of the English to claim
their rights by appealing – rightly or wrongly – to past
practice. We justify our rights not on abstract principles
“as the rights of men”, but as the rights of Englishmen,
and as a patrimony derived from their forefathers.
Justification through appeals to antiquity – whether
historically tenable or not – are part of English political
culture.’ (Hampsher-Monk, 1992, p. 266).
New Zealanders do the same. The following quotation from Eddie
Durie provides an excellent example of this appeal to
antiquity to justify present-day political interests. (The
quotation also shows his advocacy for judicial activism and a
corresponding disdain for Parliament’s supremacy.) In
encouraging ‘judge-made constitutional development’, Durie
argues that ‘the concepts of domestic dependent nations,
aboriginal autonomy, aboriginal rights and treaty partnership
are all from the bench over a period of about 170 years. They
turn in effect to principles tracing back to the 15th
century’ (E. Durie, 2005).
Edmund Burke’s reference to the continuity and inheritance
strategies of the English could equally apply to the iwi
elite, their lawyers, and the politicised judges who support
in New Zealand, Parliament is supreme and precedents from law,
distinguished as they may be by their claims to antiquity, are
not grounds for political decisions that New Zealanders do not
want. Be wary of elevating legal arguments to an almost
mythological status that may serve to hide political intent.
To do so puts the law beyond criticism. The law may serve
contemporary New Zealand society or it may not. That is for
the people, through Parliament to decide. Judges may tell us
what the law is. Parliament will tell us whether we want it.
you are not convinced by my cautionary note regarding iwi use
of legal antiquity to support their economic and political
ambitions, you may be interested in another argument that also
casts doubt on the iwi strategy. This argument accepts Common
Law as a given but disputes to whom it applies.
to the nineteenth century legal historian, F W. Maitland, the
foundational group or tribe or clan is not, and has never
been, part of the English constitution, even in Anglo-Saxon
times. Maitland found that individualism, not foundational
grouping, was the distinguishing characteristic of Anglo-Saxon
legal, economic, and political relations. This means that
English Common Law did not apply to foundational groups.
had shown that not all civilisations had started in a world
where individuals were embedded within the community, where
contract was entirely subordinate to status, and where
hierarchy and patriarchy were universal.’ (Macfarlane, 2002,
p. 83). Individuals and associations of individuals were
recognised in various forms of contract at the beginning of
the development of English common law. It is the individual
(in these various forms of contractual trusts and
associations), not the indivisible kin-group, which is the
basis of that law.
Maitland is right, then iwi insistence of continuity to the
traditional tribe may not be such a good idea after all.
wish the new post-1970s’ interpretation of the Treaty of
Waitangi to be included in a new New Zealand Constitution.
This interpretation is promoted as the true’ one, a
view that uses constant references to the law to support that
impression. But that new interpretation, like the original
Treaty, is the result of political forces at a particular
historical moment and needs to be understood not as the truth
but as a political strategy serving the interests of those
promoting it. This is quite a reasonable cause of action.
Democracy is after all a system for groups to promote their
diverse and conflicting interests without war breaking out.
However, democracy also requires constant vigilance over such
promotion. We need to constantly check who is asking for what
and why. We also need to make the judgement
- should they have it?
claims for public resources and constitutional recognition
have not received the criticism they deserve. Contributing to
this has been the strategy of cloaking those claims in legal
justification. But whatever the law might say about the
meaning of the Treaty, the final decision about its place in
our society is a political one. Its usefulness to New Zealand
must therefore be decided in the political sphere, not in
courts by judges and lawyers, but by us, the people.
development of iwi corporations, like any other business, is
to be welcomed for the contribution to New Zealand’s
economy. But to give political power to a business is to
subvert one of the basic conditions of democracy – the
separation of the political and economic spheres where the
economic is placed under the control of the political. The
rapidly growing practice by successive governments of giving
public resources to a private corporations is both bizarre and
bewildering. That it has happened is testament to the
political skill of iwi and to the failure of New Zealanders to
recognise a traditional kinship group as the same entity as a
modern social group is to subvert a second basic condition of
democracy – the principle of contractual social relations
and the political status of the individual as a citizen,
regardless of that person’s racial origin and cultural
affiliation. That we have confused the two is testament to the
skill of culturalist intellectuals in capturing public
discussion and to the failure of the media to engage fully
with the ideas.
have been extremely effective in obtaining considerable
resources and political recognition. Like all successful
groups, they want more. But their success will come at a huge
cost to New Zealand, not least to our democratic system and
liberal way of life. It is time for New Zealanders to
interrogate the assumptions under which the iwi case is built
and then decide whether the iwi case really does stand up to
If it does not, as I argue, then there should be an
end to claims
for public resources and an end to political
recognition and institutional inclusion.
E. (2005). The rule of law, biculturalism and
multiculturalism, ALTA Conference, University
of Waikato, July.
I. (1992). A history of modern political thought. Oxford:
Blackwell Publishers Ltd.
A. (2002). The making of the modern world. Houndmills:
D. (2011). Two Futures: A Reverie on Constitutional Reform.
Otago Law Review. 12(3):525–556.
*To read Dr Muriel Newman's accompanying article, "Time
to Challenge Claims and Claimants", click here>>>
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