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Professor Elizabeth Rata

New Zealand Constitution: Why iwi have got it wrong

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There is deep disquiet throughout the country about iwi claims for water rights.

However by focussing on the resource itself; previously the foreshore and seabed, this time water, next time airwaves, geothermal energy, and so on, we are in danger of overlooking the source of the issue, of overlooking why such claims can be made in the first place. To find the fundamental flaw in the tribes’ case for the ownership of  public resources such as water we need look not only at what is to be owned but at who is claiming ownership. The essence of the tribal claim is that iwi represent a separate ‘public’ – the Maori people – and are therefore entitled to own the resources of that ‘public’.

The claim that iwi constitute a separate polity with its own public is ambitious politics. If it were indeed the case then New Zealand would not be one nation but two. It may well be that in the future New Zealand does break up into two separate nations, but at present ‘New Zealand’ is the political entity and its public are all the nation’s citizens. This means that citizenship, not tribal membership, is the political category. All New Zealanders belong to this national category.

To claim that there are two separate ‘peoples’ each with rights to ‘public’ resources under the control of separate political entities is the fundamental  flaw in the iwi case. It deserves rebuttal. Despite the insistence on a primordial difference, Maori and non-Maori are not two distinctive peoples with that distinctiveness justifying separate political categories. Yet the iwi strategy of a separate people, aligned with the equally effective strategy of ‘partnership’, is powerful politics.

If, as some retribalised individuals claim, Maori are a separate people with its own political interests, then the claim for public resources for that people does makes sense. All political entities require an economic infrastructure in order to support their ‘people’. No wonder iwi intellectuals devote so much energy to making the case for a foundational difference established at the beginning of time and unamenable to change. Without a people to represent, iwi leaders would have no justification for their claims to political and constitutional power. Nor could the iwi claim to natural resources that are currently owned by the people of New Zealand be justified. This is why tribal leaders are determined to maintain the myth of a fundamental difference between Maori and non-Maori. It is the key to enormous but unjustified wealth and power.

The re-interpretation of the Treaty of Waitangi as a ‘partnership’ between two political entities since the late 1980s has played a crucial role in this highly effective strategy with the Treaty serving as the document of inheritance. Yet as David Round correctly argues in a paper published in the Otago Law Review in 2011, the concept of partnership is illogical. “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”.

It is difficult to understand the commitment by many New Zealanders to the idea that a racial division between two peoples should be built into our political and administrative arrangements. This has given iwi such instititutional power that current moves to extend that power to a constitutional separation of two polities, each with its own public, is scarcely surprising despite such a move being profoundly anti-democratic.

For several decades now I have analysed this inexplicable commitment by New Zealand’s governing class to retribalisation. My recently published book, ‘The Politics of Knowledge in Education’ includes an analysis of the ‘two peoples’ myth within the wider context of the re-racialisation of society and reactionary tribalism. Given that democracy was the great political movement of working people throughout the world to overcome the tyranny of traditional oppressive regimes it defies reason that we, Maori and non-Maori like, have so casually and timidly enabled, even welcomed, a return to tribalism.

How did this happen? How has, to use David Round’s vivid but accurate phrase, this “colossal programme of confidence men” become the most effective political strategy of our time? While I was concerned for the purposes of the book to examine how education has been damaged in profound ways, the damage to democratic ways of organising our society goes deeper and wider.

In education it has meant considerable change to the type of knowledge that is taught at school. Rather than knowledge justified by its disciplinary base in the arts, humanities and social sciences, we now emphasise knowledge drawn from experience. Experiential knowledge can be used to separate one group of people from another, as happens with the Maori non-Maori ‘two peoples’ myth. Of course it is not surprising that disciplinary knowledge has come under attack from reactionary intellectuals given that it is the knowledge developed in the disciplines that has enabled the modern world’s challenge to tradition. That objective, universal, scientific knowledge provides the rational concepts that enable us to think beyond our experience and to overcome the confines of culture.

My task in the book was to trace the shift from disciplinary knowledge to what I call ‘social knowledge’ or culture. I describe how it has affected what is taught at school and the ‘emptying out’ of content from our national curriculum. The knowledge shift is part of the larger breakdown in the commitment to universalism that enabled the rise of democracy in the modern period. The turn away from universalism to localised forms of identity based on ethnicity, race, culture, tradition or religion in many parts of the world allows growing inequalities and the rise of reactionary regimes. It suits the emergence of elites, who employ traditional beliefs about race, religion and history to justify their wealth and power. But for ordinary people the return to tribalism is the rejection of the modern world and the democratic freedoms it has given us.

New Zealand is not alone in the profound changes currently occurring to how we organise our society. Nor is education alone as a site for the change. Health, social welfare and the justice system are among many areas of socio-political life affected by the belief that some of us should be within a political category on the basis of our racial origins while the rest of us are categorised as citizens – our racial ancestry playing no role in the categorisation.

Here I must emphasis that a political category of people classified according to racial origins is a different kettle of fish from the desire of individuals and families to identify in ethnic terms and to live accordingly. The issue for New Zealand is not that some people identify as Maori. It is the right of all citizens to value and practise identification with any number of cultural, religious and lifestyle groups. The threat to democracy occurs when the group’s identity takes on a political status as happened with the newly incorporated iwi in the late 1980s.

The recognition of iwi as the legal owners of treaty settlements at that time enabled tribal leaders to acquire political status for what are in fact business corporations. This was the point at which the government weakened itself -perhaps irretrievably by allowing an economic entity to share its political status.

Separate political rights were claimed by iwi who drove the interpretations of treaty partnership and treaty principles. What are essentially political and social matters for all New Zealanders to discuss were moved to the courts in a brilliant strategy by iwi leaders to control political debate. What ordinary New Zealander feels competent to enter the fray when legal matters are tossed about by a small group of hugely influential lawyers in language few of us can understand? But the issue of how we organise our country is a political matter for all of us. It is not one to be decided in the courts.

The crux of the matter is should one group of New Zealanders have legal, even constitutional rights that are different from other citizens? This is a political not a legal issue. Its resolution requires the leadership that the government foolishly gave away in the late 1980s and 1990s to a self-interested collection of iwi leaders, compromised politicians, and skilful lawyers.

Do we allow that de facto political tribal entity to claim economic resources which rightfully belong to all New Zealanders? The tribal group is not like any other. The criteria for membership is set in the past – one must have an ancestor in order to belong. In contrast, the criteria for belonging to the New Zealand polity is not set in the past – it is theoretically open to all. So there are two crucial issues. One is the creation of a separate political category within the nation that now claims its own ‘public’. The second is that the political category is defined according to racial criteria.

The threat of a race-based constitution in New Zealand is now very real. This would have bewildered many of the first biculturalists who believed that their commitment to ‘honouring the treaty’ was concerned with social justice. In resisting the iwi claim to New Zealand’s public resources, such as the foreshore and seabed, water, geothermal energy, oil, minerals, and the airwaves it is necessary to first resist the source of the claim; that of a race-based division between two peoples each constituting a separate public with their own polity.

There is still only one New Zealand public. There is still one New Zealand government, however compromised it has allowed itself to become. If the value of a single constituted New Zealand public is not understood and protected, it is possible that a new constitution will recognise a race-based polity with an, as yet, unknown degree of power. At that point the fundamental incompatibility of the racial tribe with democracy will be too obvious to ignore but too entrenched to resist. The loser will be democracy. It will also be New Zealand.