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NZCPR Guest Forum 
An Argument against Iwi Claims to Constitutional Recognition and Public Resources
Elizabth Rata
9 September 2012

In 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 ambitions.

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?

Just 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.

The 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. 

The 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. 

The 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 democracy.

How 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. 

The 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.

The 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).

Similarly 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.

A 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 outline above.

The 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.

The 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.

However 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).

‘The 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).

We 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).

Indeed, 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 iwi ambitions.

But 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.

If 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.

According 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.

‘Maitland 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.

If Maitland is right, then iwi insistence of continuity to the traditional tribe may not be such a good idea after all.

Iwi 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?

Iwi 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.

The 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 say no.

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.

Iwi have been extremely effective in obtaining considerable
 public 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 scrutiny. 
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.

References  
Durie, E. (2005). The rule of law, biculturalism and multiculturalism, ALTA Conference, University of Waikato, July.
Hampsher-Monk, I. (1992). A history of modern political thought. Oxford: Blackwell Publishers Ltd.
Macfarlane, A. (2002). The making of the modern world. Houndmills: Palgrave.
Round, 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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