In the last five years there has been a shift in the strategies used by iwi in their quest for property rights and constitutional recognition. The shift is from a Treaty of Waitangi justification to a more comprehensive indigenous group rights argument. The group rights argument is used to claim customary rights, and in an extension, to claim that those customary rights are property rights guaranteed under English Common Law.
Professor Matthew Palmer has expressed this approach succinctly: ‘Most would say individual rights come first, but under our law, even if the treaty was extinguished, Maori rights do hold sway. Aboriginal title of customary rights exist in law separate from the Treaty – arising from a common law doctrine inherited from England and applied in Canada, United States and Australia. “It is a recognition by the English legal system that the people who were here first gained an interest in property by virtue of that fact’. (Palmer cited in Barton, 2004).
Today I will make a counter-argument in order to show that there are problems with the concept of historical continuity that underpins the iwi approach. This concept may seem of remote academic interest but I want to show today how its interpretation is crucial. If the iwi approach were to be successful, the consequences for New Zealand are serious. The property rights argument will privatise large public socio-economic assets into the hands of iwi corporations. This will create a permanent gap between a small iwi elite with aristocratic pretensions on the one hand and the majority of New Zealanders of all ethnicities on the other. The larger group rights argument for the inclusion of iwi into the nation’s constitutional arrangements will undermine the integrity of the New Zealand nation.
For both these reasons it is imperative that all the many complex ideas involved in the argument are subjected to rigorous and disinterested critique. That critique has not been part of the wider New Zealand discussion other than in a superficial Maori versus nonMaori polemic. My purpose in this presentation today is to reject that polemic as a discussion framework for one framed by the concept of historical continuity/discontinuity.
The presentation is divided into four parts:
- The argument outline.
- The theoretical framework
- The argument discussion
Part One: The Argument Outline
I will use two main arguments to oppose both the institutional and constitutional inclusion of group rights into the New Zealand nation-state, and the various political and property claims that derive from the group rights argument. Both arguments have been developed in my initial doctoral thesis in the mid-1990s and in numerous publications since. I have footnoted the relevant publications in the written version of this address in the knowledge that, without the intricately developed argument possible in academic writing, the ideas here will appear blunt and without nuance.
Group rights: An elite strategy
The ethnic and indigenous mobilisation of the 1970s and early 1980s was intended to achieve social justice and political inclusion for Maori. Since the mid-1980s it has become reshaped as the vehicle for ethnic and indigenous elite emergence. These politics of ethnicity are concerned with the political and economic ambitions and strategies of the elite. Because the indigenous group rights approach is the most significant of these strategies for New Zealand it is the focus of my presentation today.
Group rights advocates argue that there is continuity between the traditional socio-political society and the customary rights of traditional foundational groups on the one hand, and the claims made by contemporary iwi for political rights and property rights on the other. English Common Law, it is asserted, legitimates this continuity. I argue that this continuity does not exist and that the contemporary iwi are privatised economic corporations and not a revived tribal society in modernised form. This means that claims for customary rights held by traditional tribes should not be extrapolated as the property rights of the corporate tribe.
Fundamental to my argument is the theoretical approach based upon these concepts:
- A Contemporary Response to Contemporary Circumstances
The iwi group rights strategy occurs within the contemporary context of ethnic and indigenous mobilisation, itself a response to fundamental changes in the world economy of the past four decades. Ethnic and indigenous politics is a very contemporary response to contemporary conditions. It is the result of the post-1970s’ shift from class to identity politics and not a response to nineteenth century colonisation despite the use of history as a political strategy in identity politics.
- History is Change
There is a historical rupture between the social structures of pre-colonial Maori society and contemporary New Zealand society. To explain contemporary events in terms of a continuity with pre-colonial times is to misrepresent these events. This is not to deny that people living today are descended from traditional inhabitants and that a number of values, beliefs and practices are maintained. However, the historical rupture is to the structuring political and economic forces, – forces often ignored for the superficial continuity of culture appearance. The reality is that all modern people, no matter what the ethnic heritage, live in a fundamental different world from that of their ancestors.
- Ideologies of Culture
The misrepresentation of the process of ethnic and indigenous elite emergence is the result of two interdependent ideologies: cultural essentialism (culturalism), and neotraditionalism. Both are ideological strategies of the ethnic elite.
Neotraditionalism is the belief that the social structures and social relations of traditional societies have been revived, albeit in modernised forms. It is claimed that kin, rather than class social relations serve as the structuring principle.
The creation of such a sophisticated neotraditionalist ideology provides a role for ethnic elite intellectuals. In New Zealand positions have been created in the universities from where these intellectuals exert considerable influence on the development of curriculum content. The ideology is codified as an indigenous body of knowledge referred to variously as kaupapa Maori theory, matauranga Maori or tikanga Maori. Ivor Schroder, in a comparison with American Indian politics, refers to neotraditionalism as ‘a strategy of political legitimization’ (Schroder, 2003, p. 436).
Culturalism supports neotraditionalism. The culturalist believes that a person’s cultural identity is primary and determining, that it is caused by one’s ethnic or race heritage, and that culture (the way we understand ourselves and our world) determines how the world is. It projects the idea of New Zealand as a nation organised according to stable ethnic categories, each with its own culture, – fixed in time as an exotic and rarified entity which must be protected by including the ethnic+culture category into government institutions and policies. Culturalism is in the tradition of idealism so promotes ideas of cultural and intellectual relativism, – a practice which stultifies discussion and critique.
The Political Economy Approach
The opposing view, to which I subscribe, is that the world of real political and economic forces is the ultimate determinant of how societies operate, although each society is strongly textured by its ideologies of culture. The texturing in customs, language and beliefs is what gives a society its distinctive appearance. However, these surface distinctions lead to an emphasis on the differences between modern nations. This, in turn, supports the culturalist belief that how we represent ourselves is in fact what we are. So while I agree that culture matters, I consider that socio-economic forces matter more because it is these forces that determine the reality of our daily existence and the structure of the nation’s institutions.
The pervasive influence of culturalism extends to public policy, particularly in education where the Ministry of Education operates from an extreme view of intellectual relativism. There is a ‘Maori world, with different Maori realities and Maori intellectual traditions’ (MOE, 2003, p.33). This approach draws on the writings of neotraditionalist intellectuals such as Mason Durie who claims that this separately constructed Maori world view ‘like those of many indigenous people . . . forms the basis for a knowledge system that is distinctly different from other systems such as science and the Judaeo-Christian philosophies’ (M. Durie, 2003, p.13).
The powerful ideological alliance of neotraditionalism and culturalism is used to justify ethnic-based policies in education, health, justice, and throughout the public sector. Unfortunately the growing concern by many New Zealanders that such policies create boundaries between ethnic groups, fail to assist disadvantaged Maori, and undermine universal human rights is reinterpreted and described as ‘redneck’ anti-Maori attitudes. Equally unfortunately, these concerns have failed to generate a vigorous national discussion about the extent of the culturalist influence in government policy. The Josie Bullock affair is a good example.
Part Three: Group Rights and Historical Continuity as Elite Strategies.
In this part I return to the two arguments outlined at the beginning of the address. These are:
· Group rights: An elite strategy
· Historical Discontinuity
Group rights: An elite strategy
Outline of the argument:
Ethnic and indigenous movements have become reshaped as vehicles for elite emergence. The politics of ethnicity is concerned with the political and economic ambitions of the ethnic and indigenous elite and with its accompanying strategies.
The emergence of ethnic and indigenous elites is a phenomenon of the late twentieth century. Its origins lie in the brokerage politics between the leaders of ethnic mobilisation movements and the governments of a number of democratic nation-states. It was believed that policies of economic redistribution and greater political recognition for ethnic and indigenous groups would contribute to political stability and economic productivity.
However the original intentions of bicultural politics were reshaped as the brokerage between the government and Maori leaders created new channels for political and economic interests. It was by fulfilling the brokerage function that Maori leaders became a self-interested elite. Power, influence, positions and economic benefit were acquired by these brokers as capital and economic resources were transferred to tribal corporations and as the brokers were included in government institutions, policies and practices, – all justified by the neotraditionalism of Treaty of Waitangi ideology.
The bicultural intentions of 1. economic redistribution to disadvantaged Maori, 2. increased political involvement through ‘active’ or participatory democracy, and 3. Maori cultural revival had received enthusiastic support from Maori and nonMaori alike. Even when it was increasingly obvious that the first intention had failed, and that the second did not have the support of the majority of New Zealanders (probably because of Treaty education not for the lack of it), two groups in particular remained committed to biculturalism. One group comprises those of the political left with a commitment to social justice, who still believes in the original democratic rhetoric of Maori mobilisation, despite evidence of identity politics’ reactionary nature. A second group, often those in government positions such the Ministries of Education, Health, and, one must now add, the Probation Service, are so locked into policies and practices based upon cultural essentialism that any change would require painful ideological surgery, possibly with casualties.
The third intention, – Maori cultural revival, has thrown up a number of interesting issues in recent months. These also include the human rights issue highlighted by the Bullock affair, along with calls to reconsider Maori cultural practices in public institutions. A vigorous discussion about New Zealand’s national rituals, – origins, contemporary character, and future purposes, – appears ready to explode on the national scene, unless of course there is a collective failure of nerve in response to the culturalist outrage that will follow the public scrutiny, even disemboweling, of sacred cows.
The iwi elite must necessarily vigorously oppose the unraveling of neotraditionalist and culturalist ideologies given that the politics of ethnicity is its strategy. It was the recognition and inclusion of ethnic categories into the institutions of the state that made possible the elite’s emergence in the first place thus it is in the elite’s interests to consolidate and extend ethnicity in the institutional and constitutional arrangements of government.
The reality is that Maori, like other groups, are distributed in society on a class basis. This makes the ethnic-class axis upon which the elite is perched, a very tense and contradictory place. On one hand the elite claims to speak for the downtrodden. On the other hand it reaps the rewards available to those who are obviously not downtrodden. The increasing fundamentalism of a number of Maori leaders provides one outlet for coping with this contradiction. The ‘we are who we should be’ ideological cry becomes shrill as this group seeks to convince a skeptical New Zealand (who may be more accurately described as doubters rather than rednecks) that ethnicity is and should be the primary category of public life. The two interdependent ideologies, culturalism and neotraditionalism, become increasingly doctrinal as the reality of New Zealand’s ethnically fluid society calls into doubt their validity. And because the neotribal elite represents itself in traditional leadership terms, – which justifies its brokerage role, and is the source of both its new economic interests and its political influence, – ethnic ideologies will not be easily overthrown.
Group rights advocates argue that there is continuity between the traditional socio-political society and the customary rights of traditional foundational groups on the one hand, and the claims made by contemporary iwi for political rights and property rights on the other. English Common Law, it is asserted, legitimates this continuity on two grounds: continuity with legal antiquity, and the recognition of the foundational group in early English Common Law.
There are three reasons to oppose this historical continuity claim.
There is a fundamental historical rupture between the traditional tribal structure and the contemporary corporate tribe. Yet iwi claim to be the inheritors of the past. It is the basis of the indigenous group rights argument. An example of this is Eddie Durie’s claim that ‘the indigenous have a bundle of distinctive claims that may be seen as the natural consequences of their indigenous status. Indeed for most legal purposes their rights derive not from their culture but from their existence as political entities before the state’s establishment’ (E. Durie, 2005, p.3). However, despite Durie’s words, there is nothing ‘natural’ about these consequences. In fact there are two areas where a fundamental historical rupture breaks this so-called natural continuity.
First, the traditional foundational group of pre-colonial times is not the same social structure as the contemporary tribe. Foundational or kinship-based groups are ‘non-divisible entities bound by kinship or ethnic/race bonds that exist outside and beyond the individual’s agreement. They are not reducible to individual membership.’ (Sharp, 2004, p. 5). The contemporary tribe, in contrast, is an association of individuals in which socio-political relations are structured by contract. It is not a traditional society based upon status. Despite neotribal ideology, the so-called ‘iwi-citizen’ has an individualised public identity like any other New Zealand citizen.
Second, the redistributive economy of a traditional society is not the same political economy as the accumulatory political economy of global capitalism. With contemporary iwi, as with all modern corporations and associations, socio-economic relations (which are the structuring principle of a society and which determine its regulatory institutions and mechanisms) are based on class and contract. They are textured by the cultural norms of modernity. These socio-economic relations are not determined by traditional hierarchical status and are not expressed through traditional cultural mores. To claim the latter is to create an ideological representation of the traditional social structure and call it the revived tribe. This is what the neotribal elite has accomplished so successfully. Despite such impressive strategic success however, the real character of contemporary iwi is that of an economic corporation, concealed by neotraditionalist ideology. This ideological concealment is the reason for my use of the term ‘neotribe’ (Rata, 2000). My purpose is to highlight the ideological nature of contemporary iwi ambitions, strategies and claims.
Neotribal strategy uses appeals to English Common Law to legitimate the claim of a continuity between the traditional tribe and the contemporary neotribal corporation. However English Common Law cannot be applied to the customary rights argument because the concept of legal antiquity itself is ideological.
The idea of continuity to ancient English legal models to justify present-day political and economic ambitions is as ideological as the primordialism used in neotraditionalist arguments. Drawing on Edmund Burke’s writings, Hampsher-Monk (1992) points out that, in the seventeenth century as today, appeals to English Common Law were politically motivated. ‘The English Common law argument – used politically since the early seventeenth century – 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).
There is a certain irony in the fact that the neotribal elite are doing something so very English, in the service of emphasising their difference in order to claim constitutional recognition as a distinct group. Yet, given that their real nature is as a modern elite, it is to be expected that they will use modern strategies, which include appeals to legal antiquity to justify political and economic ‘rights’.
Eddie Durie provides an excellent example of this strategy. In encouraging ‘judge-made constitutional development’, he 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 ideology of the English could equally apply to the iwi elite. ‘The powerful prepossession towards antiquity, with which the minds of all our lawyers and legislators and all of the people whom they wish to influence, have been always filled; and the stationary policy of this kingdom is considering their most sacred rights and franchises as an inheritance. (Burke, cited in Hampsher-Monk, 1992, p.267)
There is a third reason I oppose the claim of historical continuity between the traditional tribal society and the customary rights of traditional foundational groups on the one hand, and the claims made by contemporary iwi for political rights and property rights on the other. This reason is also based on the argument made above that English Common Law cannot be applied to the customary rights argument used by iwi. In this third case the reason is because English Common Law did not apply to foundational groups.
Even if one rejects the ideological nature of appeals to legal antiquity as a reason to reject the indigenous group rights argument, and continues to argue that foundational group rights existed in English Common Law, that these rights have never been extinguished, and that they remain the source of customary rights to property and political recognition, – there is another reason to oppose the argument. According to the nineteenth century legal historian, F W. Maitland, the foundational group is not, and has never been, part of the English constitution, even in Anglo-Saxon times. Alan Macfarlane (2002) has shown that F. W. Maitland provided convincing evidence 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. The individualised legal relation was the defining characteristic of English common law from very early times. ‘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 organisation, which is the basis of that law.
It is for these reasons, – the rupture between societies organised according to different socio-economic structures, and the ideological nature of appeals to historical legal authority, that I oppose the elite’s argument for the constitutional inclusion of ethnic and indigenous group rights. It is for these reasons that I explain iwi demands for constitutional recognition and property ownership is in terms of the neotribal elite’s self-interested strategies in pursuit of their political and economic ambitions.
Yet what is the problem with an ethnic and indigenous elite seeking political and economic power in the time-honoured way other elites have used throughout the modern period? (Lachmann, 2000). Should not the neotribal elite be admired for its remarkably successful political and ideological strategies?
Why is it acceptable for non-ethnic elites to emerge triumphant yet not ethnic and indigenous elites? At first glance complaints of racism made by members of the elite may well be justified? Indeed, the problem with institutionalising an ethnic and indigenous elite into New Zealand’s constitutional arrangements is not because it is an elite per se, but because it is an ethnic and indigenous elite. However the reason is not ethnicity or race itself, but the ideologies and strategies of ethnic politics. Non-ethnicised elites support the nation-state by their very existence. Indeed nation-states emerged in response to the bourgeoisie’s need for a politically stable society regulated on the basis of contractual, not birth-status, social relations. The neotribal elite, in contrast, seeks a regulatory structure that is based upon foundational groups, albeit ideologically constructed ones, and the status hierarchies that bind such groups.
If foundational group rights are incorporated into the New Zealand nation-state in some form of constitutional arrangement, that entity will become an entirely different structure to the one established in the past two centuries as a result of a number of foundational constitutional events. The structural cohesion of the nation-state itself will be destabilised by altering the meaning and practice of citizenship in the very institution responsible for organising, regulating and protecting this institution. By changing one constituent part, the remaining parts and the nature of the entire edifice will be irrevocably changed.
The group rights strategy of the neotribal elite leaves no doubt that citizenship is at risk. Mason Durie, an influential neotraditionalist, says the battlefield is one of individual democratic rights versus group rights. ‘At stake is whether indigenous rights can override the principle of equality of citizenship’. (cited in Barton, 2004: B6).
It is my belief that arguments such as the one I have outlined today, arguments which oppose the inclusion of the kin-based foundational group into our constitutional arrangements, must be as fully considered as arguments in support of iwi constitutional recognition. This will only happen when we, as a nation of free and educated citizens, can rise above a superficial name-calling Maori – antiMaori polemic and accept that reasoned argument, however opposed to one’s own, is not racism. My purpose today has been to make a small contribution to the higher level of discussion about our nation’s future that we desperately need.
This address was first presented at the 26th November 2005 Anatomy of Power Symposium at the University of Auckland. I have placed on my website in July 2009 because I consider that the argument outlined here addresses the ongoing debate (or lack thereof) about iwi ownership claims.
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