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In this article I discuss MŠori political representation, under the New Zealand mixed member proportional representation system (MMP), as an expression of tino rangatiratanga. Tino rangatiratanga in the context of the Treaty of Waitangi guaranteed the right of MŠori to self-determination, that is, the right to make decisions over their land, their communities (villages) and those matters that related to the preservation and advancement of their culture (treasures).
The subject matter of this article arose from a specific experience. I was instructed by the lawyer for the National MŠori Congress to appear as counsel in a claim before the Waitangi Tribunal.[1] I begin this article by narrating the details relating to the claim. I do so to illustrate that MŠori felt strongly that their constitutional rights were being interfered with, without their participation or consent, and to emphasise that their capacity to challenge legally the Crown’s action was limited. I then discuss the various meanings attributed to the term tino rangatiratanga; the nature of sovereignty, in particular, parliamentary sovereignty in the New Zealand context; and finally the possibilities and limitations of MMP as a site for struggle for the recognition of tino rangatiratanga.
The claim arose out of the 1993 referendum that resulted in a majority vote to introduce MMP. In the transformation of the referendum outcome into legislation, provision was made, but only after last minute intervention from the pan-tribal groups, to retain separate MŠori representation in Parliament. However, instead of retaining the existing four MŠori seats, the Electoral Act 1993 provided for the number of seats to be determined by the number of MŠori registered on the MŠori electoral roll. The more MŠori on that roll, the greater the number of seats. MŠori were to be given an opportunity to exercise their choice of electoral roll after each census. Because the next census was not until after the first MMP election in 1996, it was decided to provide MŠori with an opportunity to exercise their option before that election.
The subject of the claim was the way in which the Crown provided that opportunity. On 22 December 1993, the MŠori Option Notice issued by the Minister of Justice was published in the Gazette, just three days before the Christmas holiday break. It provided a two month period, from 15 February to 14 April 1994, during which MŠori were to exercise their option. The concern of MŠori at the shortness of the notice was expressed at a hui held at Turangawaewae on 14 January 1994. Although the hui was held in the holiday period, up to 300 people attended, including the Presidents of the key MŠori organisations - the National MŠori Congress, the New Zealand MŠori Council, and the MŠori Women’s Welfare League. The claim before the Tribunal was a direct result of that hui. Urgency was sought and granted by the Waitangi Tribunal and we commenced the claim on the 27 January 1994.
On the surface the issue in the case was simple. The MŠori applicants[2] were contesting the adequacy of the funding to MŠori to assist them to promote enrolment of their people and to gain an understanding of the nature and implications of the choice they were required to make when registering on the MŠori or General Electoral Roll. The applicants were not contesting the legitimacy of the Crown to enact this form of political representation for MŠori. That argument had been won or lost, depending on one’s perspective, during the political process that had produced the inclusion of the MŠori seats within the new electoral system. I shall refer to this process later in the article.
In this claim those MŠori who supported separate representation were endeavouring to position themselves to take full advantage of the new system and gain the maximum number of seats MŠori were capable of achieving under MMP. We estimated that twelve seats may have been possible. This estimate was based on a very optimistic assessment of all eligible MŠori voters being registered to vote and a large majority of them being on the MŠori electoral roll. Just how optimistic that assessment was can be seen from the fact that, in the 1991 census, 126,723 MŠori were registered on the General Roll, while 87,562 were on the MŠori roll. It was also estimated that 50,000-60,000 MŠori were not registered at all and therefore did not participate in the political system. Although twelve MŠori seats was unlikely, the MŠori leadership wanted the best possible position with which to enter the new system, because for the first time it offered a real opportunity to exercise political influence, and maybe even power. It was essential not to miss this opportunity, but money was needed if all MŠori were to be made aware of the possibility of obtaining more effective political representation.
To acquire the financial resources necessary, the applicants needed to establish that the Crown was under an obligation to provide MŠori with the resources they needed. Since the Crown’s legal obligations to MŠori derived from the Treaty of Waitangi, I argued that the Crown was in breach of its statutory duty to guarantee MŠori under Article 3 of the Treaty the same rights and privileges of British subjects. Although in 1840 citizenship rights were somewhat limited for both MŠori and European/Pakeha, it is now accepted as a matter of policy and law that, when interpreting the text of the Treaty, reliance may be had on the principles or intent underlying the Treaty. The Treaty is recognised as a living document and not a legal fossil. The Court of Appeal in New Zealand MŠori Council v A-G [3] described the Treaty as:
a document relating to fundamental rights; ... it should be interpreted widely and effectively and as a living instrument taking account of the subsequent developments of international human rights norms.[4]
The current relevance of the Treaty was also recognised in 1989 when the Labour Government published a policy document that attempted to translate the language of 1840 into statements of policy relevant to the 1990s.[5] The principles outlined were not an attempt to rewrite the Treaty, but “to help Government make decisions about matters related to the Treaty”.[6] Under these principles, Article 3 of the Treaty was translated as follows:
The third Article of the Treaty constitutes a guarantee of legal equality between MŠori and other citizens of New Zealand. This means that all New Zealand citizens are equal before the law. Furthermore, the common law system is selected by the Treaty as the basis for that equality although human rights accepted under international law are incorporated also.
The third Article also has an important social significance in the implicit assurance that social rights would be enjoyed equally by MŠori with all New Zealand citizens of whatever origin. Special measures to attain that equal enjoyment of social benefits are allowed by international law.[7]
In policy terms, then, the common law is the law of the Treaty, and the common law is the only law to which reference can be made when determining the rights and obligations that flow from the Treaty. The authority for this interpretation flows from a reading of Article 1 of the Treaty as giving the Crown kawanatanga or government of the land, and from the settlers and the Crown interpreting government as being carried out in accordance with the common law. However, the right to government was subject to the previously mentioned Article 3 guaranteeing the right to equal citizenship, and also to Article 2 under which the Crown agreed “to protect the Chiefs, the Subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures”.[8] MŠori argue that this Article 2 right to tino rangatiratanga includes the right to exercise their customary law in accordance with the terms of the Article. There was statutory recognition of this right in section 71 of the 1852 New Zealand Constitution Act, which provided for the setting apart by Letters Patent of certain districts within New Zealand in which MŠori laws, customs, and usages, not repugnant to general principles of humanity, were maintained “for the Government of themselves, in all their Relations to and Dealings with each other”. However, this provision was never implemented and was not included in the current New Zealand Constitution Act 1986.
When arguing the MŠori Electoral Option Claim, I relied on the principles of the Treaty of Waitangi, in particular those contained in Article 3, as those principles have been interpreted by the Courts. In particular, I relied on the Broadcasting Assets Case [9] to establish the nature of the Crown’s obligation in the claim. The judgment in this case sets out the current legal understanding of the legal status of the Treaty. The Privy Council followed the “principles” approach, and described those principles thus:
Foremost among those “principles” are the obligations which the Crown undertook of protecting and preserving MŠori property, including the MŠori language as part of taonga, in return for being recognised as the legitimate government of the whole nation by MŠori. The Treaty refers to this obligation in the English text as amounting to a guarantee by the Crown. This emphasises the solemn nature of the Crown’s obligation. It does not however mean that the obligation is absolute and unqualified. This would be inconsistent with the Crown’s other responsibilities as the government of New Zealand and the relationship between MŠori and the Crown. This relationship the Treaty envisages should be founded on reasonableness, mutual co-operation and trust. It is therefore accepted by both parties that the Crown in carrying out its obligations is not required in protecting taonga to go beyond taking such action as is reasonable in the prevailing circumstances.[10]
I argued that, on the basis of this decision that the Crown was under an obligation to protect the citizenship rights of MŠori, and that although the obligation was not absolute and unqualified, in the circumstances of this case the Crown had not acted reasonably.
Although the Broadcasting Assets Case dealt with an Article 2 obligation, the Waitangi Tribunal held that the same reasoning applied to Article 3 obligations, and that the Crown was in breach of its obligation in this case. The Tribunal stated:
There can be no doubt that the obligation on the Crown actively to protect MŠori Treaty rights extends to the rights protected under article 3 and in particular to the right of MŠori political representation, which is one of the most important rights, if not the most important, included in this article.[11]
Although the applicants won the claim before the Tribunal, it was lost on appeal, where the argument centred on the reasonableness of the Minister of Justice’s decision.[12] It was clear from the decisions that neither the New Zealand Court of Appeal or the Privy Council were prepared to address the constitutional implications of the case. By treating the issue as one of administrative law, the Courts avoided any possibility of challenge to the authority of the Crown to govern in accordance with the common law. The case highlighted the real limits on the legal force of the Treaty, and emphasised that, if the Treaty is genuinely to be considered a constitutional document, it requires specific legal recognition of this status.[13]
It is interesting to note that some of the arguments presented have been incorporated in the administrative arrangements for the current MŠori Electoral Option. The time for the Option has been extended from two to four months; the amount of money allocated by the Crown has been increased from $220,663 to $2 million; and an information campaign has followed the traditional MŠori method of face-to-face contact. The fact that Dr Ngatata Love, the former chair of the pan-tribal group that led the campaign in 1993, is now the Chief Executive of the Ministry of MŠori Policy/Te Puni Kokiri, had undoubtedly also assisted a change of government policy. The recent Electoral Option has resulted in sufficient number of MŠori shifting to the MŠori Electoral Roll to create six MŠori seats at the next election. The significance of this gradual shift of MŠori to the MŠori Electoral Roll has yet to be analysed. For the purposes of this article, however, it supports the argument that I make later, namely, that the MŠori seats under MMP have the potential to effect a more fundamental change in MŠori citizenship.
Before I develop this argument, however, I want to complete the narrative of the case and the comment of the Tribunal that set me thinking about the thesis of this article. The Tribunal noted in its report that I had relied on Article 3 in support of my argument, but that I had raised the possibility, in my closing submission, that Article 2, the guarantee of tino rangatiratanga, may also be relied on in this case. I argued that rangatiratanga embraces the right of self-determination which, in the context of this claim, means the form and nature of political representation which gives MŠori the maximum control over their political representation that is consistent with the provisions of the Electoral Act 1993. The MŠori seats, I submitted, represented the closest form of political self-determination currently available to MŠori, therefore the Crown was under an obligation to ensure that everything was done to enable MŠori to achieve the maximum number of MŠori seats through the exercise of the MŠori electoral option. Because adequate opportunity had not been given to the Crown to respond to this argument, the Tribunal expressed no opinion on it. The Tribunal did observe however that
the provisions in the Electoral Act 1993 greatly enhancing the extent of political representation of MŠori in Parliament and, hence, the rangatiratanga of MŠori, constitute a taonga in terms of article 2 of the Treaty and are entitled to Crown protection on that account also.[14]
In effect the Tribunal was suggesting that political representation in Parliament was an essential element of MŠori rangatiranga/sovereignty, and not only an expression of the right to citizenship rights on the same basis as British/New Zealand citizens.
While the source of MŠori citizenship rights as individuals is Article 3 of the Treaty, the right to full citizenship as tangata whenua is derived from the right to rangatiratanga under Article 2. Attempting to give meaning to tino rangatiratanga is fraught with difficulty. This is not only because of the dangers inherent in any translation of a concept from one language to another, but also because it is a concept that is subject to change within both MŠori and European/Pakeha contexts. It is a living notion that takes form according to its context. However it undoubtedly contains an essentialism that is associated in European constitutional terminology with sovereignty, and self-government. Roger Maaka and Augie Fleras describe MŠori perception of tino rangatiratanga as follows:
The principles and practice of tino rangatiratanga conjure up a host of reassuring images for restoring “independent MŠori/iwi authority” to its rightful place in a post-colonizing society (Mead 1997). The essence of rangatiratanga is sovereignty driven: For some, this sovereignty prevails over the entirety of Aotearoa, for others, it entails some degree of autonomy from the state, for still others, it consists of shared jurisdictions within a single framework. To one side are claims for control over culture under tino rangatiratanga (Smith and Smith 1996); to the other are arrangements for economic development as a spearhead for cultural growth and political autonomy (Mahuta 1996). To be sure, the relationship between rangatiratanga and sovereignty is complex and poly-textured: That is, tino rangatiratanga serves as a precursor of MŠori assertions for sovereignty; it also provides the basis for, derives from, and is strengthened by claims to self-determination. In all cases, however, tino rangatiratanga is inseparable from MŠori challenges to the once undisputed sovereignty of the Crown as sole source of authority.[15]
I support the Maaka and Fleras assessment that rangatiratanga is the source of MŠori challenge to the Crown’s notion of a sovereignty that is the sole source of authority over all peoples, in all circumstances. While the specific content and institutional forms of rangatiratanga are being developed and tested in a variety of contexts on a daily basis in New Zealand Aotearoa, it is the constitutional recognition of rangatiratanga, as a source of authority, independent of the Crown, that is the subject of this article. While the Treaty of Waitangi recognises tino rangatiratanga under Article 2, the interpretation of Article 1 that gives the Crown the right to determine the constitutional arrangements for governance has meant that rangatiratanga must be exercised within the limits as defined by the dominant culture. This subordinate status of rangatiratanga makes it impossible in the New Zealand Aotearoa context to achieve, under its current form of constitutionalism, what James Tully has described as the “philosophy and practice of constitutionalism informed by the spirit of mutual recognition and accommodation of cultural diversity”.[16] In other words, the interpretative gloss that has been placed on the Treaty of Waitangi Articles has constructed a monocultural constitutionalism, that affords limited recognition to the “other” culture of MŠori. Such recognition is always confined within the boundaries of the principles and practices of European modern constitutionalism, which are expressed in New Zealand Aotearoa through the institution of the sovereign Parliament.
The importance of parliamentary sovereignty in the New Zealand context can best be understood through a brief description of the principles and institutions of constitutionalism as developed by the white settler society over the past 150 years. As the Royal Commission on Electoral Reform stated:
Democracy is the fundamental principle of our constitution. It associates the people of the country with their Governments, treating each member of the people equally.[17]
The early struggles of the white settlers to free themselves from the governance of the English bureaucrats and politicians revolved around the formation of representative institutions. The importance of the right of all people to participate in the political decisions that affected their lives is seen in the fact that, by 1893, all people, men and women, MŠori and European, had the right to vote.
The settlers experimented with various institutional forms of representation, including an upper house. However, since 1950, New Zealand Aotearoa has settled on a simple unicameral constitutional framework, consisting of the sovereign, who is the head of state; the executive, which comprises members of the House of Representatives and the bureaucracy; the House of Representatives, consisting of members elected in accordance with the Electoral Act 1993; and the judiciary, who are appointed by the executive, but removed only by the House of Representatives. The power to make laws and appropriate public monies resides in the Parliament which consists of the sovereign and the House of Representatives. These constitutional institutions are enacted in the New Zealand Constitution Act 1986, which can be amended by a simple majority of Parliament. Representation in Parliament is organised according to membership of political parties, that are private organisations, most of which are unincorporated. It is possible to sit as an independent member of Parliament, but it is extremely difficult to be elected as an Independent.
The purpose of this brief description is to illustrate that the reality behind the concept of sovereignty is that it resides in the individuals who comprise the members of the majority party elected to the House of Representatives. These individuals, normally working in unison, exercise considerable power, limited only by the need to act within the law, which they themselves make, and their perception of public support. Under the first past the post electoral system, this power was exercised, in practical terms, by the members of the governing party who were members of Cabinet. This constitutional arrangement has been described as follows:
New Zealand’s constitution under FPP offered the most streamlined executive decision-making machine in the democratic world - once elected to government a political party could do what it liked for the next three years.[18]
It was this concentration of power in the executive that enabled the restructuring of New Zealand Aotearoa during the 1984 - 1996 period to be effected so rapidly and without effective opposition. Those changes included legislation enabling the backdating of claims under the Treaty of Waitangi until 1840, and a policy to devolve to iwi resources to provide them with an economic base.
The deconstruction of this centralisation of power in government, or more accurately the Cabinet, has been undertaken in two ways, economically and politically. First, the policies of economic rationalism required the state to devolve or divest from itself the power to make decisions over the allocation of resources. The market was deemed to be the best mechanism for this task. For those tasks left to the decision of state institutions, the market principles of managerialism were introduced to ensure that the cost of the remaining services were minimised. New Zealand Aotearoa followed the familiar path of privatisation of state assets and public sector management based on private sector models. It is important to note, however, that while the number and variety of tasks performed by the state institutions decreased, the central authority of Parliament was not diminished. These policies affected MŠori, as individuals and as a community, as they affected everyone. It is beyond the scope of this article to discuss the implications of economic rationalism for MŠori. I shall now concentrate on the political reaction to this radical restructuring of New Zealand Aotearoa society.
The political reaction of the people to economic restructuring was to reconstruct the membership of the House of Representatives to try to redress the adverse effects of the centralisation of power in the executive. MMP was the mechanism chosen by the people through referendum to enhance the authority of the House of Representatives through making it more representative. The need to include within the political decision-making institutions the community’s diversity was recognised as essential if the democratic principles on which the government was founded were to be preserved. Although diversity can lead to conflict and less certainty of outcome, the need to negotiate and mediate political outcomes was seen as a primary benefit of the new electoral system. Consensus decision-making was deemed preferable to the authoritarianism experienced under the previous electoral system. Palmer and Palmer concluded a consideration of the effects of MMP on government with the observation that:
MMP adds new, and more complicated dynamics to government structures and processes, but because these allow more points of view to be heard, developed, and considered in the process of governing, our democracy will be enhanced.[19]
If the principles on which the new MMP system was founded are the incorporation of diversity within the formal institutions of political decision-making, and if the expectation of the need to negotiate and mediate political decision-making through forming a consensus is fulfilled, it may be possible to construct a site that is willing to look at tino rangatiratanga on its own terms, that is, as a source of authority separate and distinct from the authority of Parliament. I am aware that there are a lot of “ifs” in this argument. As a political realist, however, I argue that the conditions are more favourable to such a process under MMP than they have been in the past. Whether the potential of MMP for MŠori is fulfilled will depend on how those conditions are used by the various parties, both MŠori and European/Pakeha.
It is important to consider how MŠori fit into MMP, a more diverse, more democratic electoral system. The first point to note is that since 1867 MŠori have had separate political representation in the form of four separate MŠori constituency seats. The establishment of these seats was not in recognition of the Treaty obligations to guarantee equal citizenship to MŠori. Alan Ward observed that the seats “stumbled into being” for pragmatic political reasons of the colonial government of the time,[20] and Sorrenson described them as “a useful way of rewarding MŠori loyalists, and placating MŠori rebels, while also reassuring critics in Britain that the colonists would look after MŠori interests”.[21] Whatever the intention of the colonial politicians, the MŠori seats became an established part of the House of Representatives, afforded MŠori limited political representation, and serve as a constant reminder of the larger claim of tino rangatiratanga.
While there were various attempts from time to time to reopen the question of the need for separate MŠori political representation, it was not until the Royal Commission on Electoral Reform in 1986 that a formal recommendation was made to abolish the MŠori seats. This recommendation, which was against the submission of MŠori who wanted to retain the seats, was made in the context of the Commission’s recommendation to replace the first past the post electoral system with a mixed member proportional representation electoral system.
It is important to try to understand the rationale behind the recommendation of the Royal Commission to abolish the MŠori seats when faced with the overwhelming support of MŠori for their retention. At the beginning of its Report, the Commission stressed that it was through Parliament that the people became sovereign and that Parliament “is the essential source of law”.[22] The review of the electoral system was therefore consistent with the traditional concept of the supremacy of Parliament as sovereign. The methodology of the Commission in its assessment of the electoral options was to identify 10 criteria against which to test the existing and alternative electoral systems. The criteria chosen were fairness between political parties, effective representation of minority and special groups, effective MŠori representation, political integration, effective representation of constituents, effective voter participation, effective government, effective Parliament, effective parties, and legitimacy.[23]
In terms of effective representation for MŠori under the existing plurality system, the Commission concluded that it was “ seriously deficient in providing for effective representation for MŠori people”.[24] It also found that separate MŠori political representation “works against the mutual understanding between the races, a factor which is also relevant to the next criterion [political integration]”.[25] When testing the alternative electoral systems against the criterion of effective MŠori representation, the Commission concluded that MMP provided the best opportunity for representation, but did not support a separate electoral roll or separate representation for MŠori.
Although the Commission recognised the special representation needs of MŠori, it considered that those needs were best addressed through integration. The Commission argued that it would be in the interests of the political parties to appoint MŠori to their lists, and that if MŠori felt that such representation was not adequate they could form their own political party. This conclusion was reached through the construction of MŠori political representation in terms of minority representation. As the Commission correctly observed:
Having MŠori MPs, however, is necessary but not sufficient for the effective representation of MŠori interests. In a democratic system, the protection of minority interests ought to be the responsibility of Parliament as a whole and not just of the MPs who happen to belong to the minority group. All MPs ought to be accountable in some degree to MŠori electors. Support of the majority for MŠori interests is more likely to be forthcoming if all MŠori electors have an effective vote - one which carries some weight in the election of political parties to Government, and hence one for which parties will need to compete. An effective MŠori vote would have an important bearing upon the ways in which MŠori concerns are regarded both by the individual representatives and by the political parties.[26]
Thus, MŠori interests were to be best protected through the exercise of their vote to effect the success or failure of one of the larger political parties, which represented the interests of a segment of European/Pakeha community.
There is political logic in this argument that appeals to European/Pakeha political self-interest. It does not however address the issue of what happens once the vote has been cast, the advantage gained, and the government does not address the needs of MŠori electors. Under the FPP system, MŠori, like other groups, had no real way in which to compel the government to implement its election manifesto. Although MMP presents the voter with a similar problem, it does provide the potential of a minority group to act as broker and enable one of the two major political parties to become government. MMP then provides MŠori with an opportunity to attain real political power that could effect a positive policy outcome for MŠori interests.
The Commission’s approach avoided the issue of tino rangatiratanga in terms of a competing sovereignty, because it affirmed that there was only one sovereign, Parliament. The Commission therefore concentrated its endeavours on giving greater effect to the Article 3 rights. The problem with this approach is that full effect of Article 3 rights can only be achieved through a recognition of tino rangatiratanga. MŠori political representation was therefore constructed in terms of the European/Pakeha political experience. Although the Commission correctly analysed the weaknesses of the existing system for MŠori political representation, it provided a European/Pakeha solution.
To be fair to the Commission, it recognised that MŠori had not achieved full citizenship under the current constitutional arrangements, and that this was unlikely to occur unless the status of, and the rights and obligations under the Treaty of Waitangi were clarified. The limitations of reform of the electoral system to produce the constitutional reform required by MŠori were acknowledged by the Commission in its recommendation to government that:
7. Parliament and Government should enter into consultation and discussion with a wide range of representatives of the MŠori people about the definition and protection of the rights of the MŠori people and the recognition of their constitutional position under the Treaty of Waitangi.[27]
This recommendation was never implemented though reference has been made to it by MŠori in their negotiations with the government over the details of the Electoral Act 1993.
The story of how the recommendations of the Royal Commission became law is beyond the scope of this article. I concentrate on how the recommendation of the Royal Commission relating to the abolition of the MŠori seats was not incorporated into the new Electoral Act 1993. The initial draft of the legislation did not include provision for separate MŠori representation. The pan-tribal MŠori organisations had to fight a rearguard battle to amend the Bill to reinstate the policy of separate MŠori representation. The National MŠori Congress argued for retention on the following grounds:
Constitutions do not need to be written to exist and some rules simply grow out of time. The status of the Treaty within our constitutional law has been left open for the courts today to declare that the Treaty is part of our Constitution.
What flows from this in terms of the Electoral Reform Bill as it exists at the moment is probably assimilistic. The Bill currently does not recognise the constitutional status of MŠori.
We are not a mere minority but rather to be seen as a Constitutional Entity and the four MŠori seats acknowledge that status. While that acknowledgment is probably more accidental than by intent, the result is that the constitutional status of MŠori is at least acknowledged.
There is a clear need to have an electoral system which gives better power to MŠori to participate in the political process but this must be done in a manner that is consistent with the Treaty of Waitangi and in a way which acknowledges our unique constitutional status.[28]
This article emphasises the basis on which MŠori sought recognition of their constitutional status. The preservation of the MŠori seats was part of the claim under the Treaty of Waitangi to a unique constitutional status. However the submissions by MŠori sought not only the preservation of the MŠori seats but also the establishment of a MŠori Electoral Commission to “promote MŠori participation in a parliamentary democracy; to facilitate the provision of fair and just representation of MŠori in parliament; to educate MŠori to exercise their political franchise”.[29] The functions of this Commission included determining the size of the MŠori roll, maintaining the MŠori roll, enrolling MŠori on the MŠori roll, determining the ratio of constituency MPs to list MPs, and determining the MŠori electoral boundaries.
The scheme proposed in this submission was a practical example of an attempt to construct the right to rangatiratanga within the context of a parliamentary democracy. It was an attempt by MŠori to assert self-determination over their political representation. The notion of a separate MŠori Electoral Commission was rejected by the Committee. However, the Electoral Act eventually provided for the provision of a separate MŠori electoral roll; for the inclusion on the Representation Commission, when it determined the boundaries of the MŠori seats, of the Chief Executive of Te Puni Kokiri and a MŠori nominee of the government and the opposition; and for the number of MŠori seats to be in proportion to the number of MŠori on that roll. There was no longer a fixed number of MŠori seats, but there was the potential for a greater number of seats in the House of Representatives. This is in fact what happened.
After the controversy surrounding the Claim with which I began this article, the MŠori Electoral Option produced five MŠori seats. The second Option has resulted in six MŠori seats. The prediction of the Royal Commission that the political parties would need to incorporate more MŠori members within the Party lists also proved correct and the end result after the 1996 election was 15 MŠori Members of Parliament out of a total of 120. The MŠori members are distributed amongst all the political parties and more importantly, the party with the most MŠori members, New Zealand First, holds the balance of power. After a period of courtship, which was probably not a good example of the type of political negotiations hoped for by the advocates of MMP, New Zealand First entered a political marriage with the National Party. The bride price paid by the National Party was high in terms of sharing the trappings of political power - the leader of New Zealand First was made Deputy Prime Minister and Treasurer, and the Party was given two other full Cabinet positions with a promise of two more in 1998, as well as four positions outside Cabinet. The National Party however paid very little in terms of policy, so that the policy of economic rationalism continued unabated, but now directed by a MŠori Treasurer. The Coalition Agreement’s section on MŠori is a mixture of specific and generalised commitments. The statement of general direction states that:
The Treaty of Waitangi is fundamental to the relationship between the Crown and MŠori. Within that broad framework, Government is committed to working with MŠori to achieve full and active participation in New Zealand society. MŠori have the dynamism and vitality to determine their own social and economic development. Justice and equity are overriding principles in improving education, health, housing and economic outcomes, and in settling Treaty claims.[30]
This statement affirms MŠori as an essential part of the political system and their right to participate fully within New Zealand society. The statement hints at increased autonomy but does not state a commitment to rangatiratanga in the sense of sovereignty. It is essentially a statement of a policy of continued integration, but with some limited areas of greater autonomy - an autonomy consistent with devolution of previous state responsibilities to the private sector. Whether this statement reflects the insistence of the National Party, which supports integration, or the confusion of the NZ First politicians, who fought an election campaign with a policy that has been described as a “notional construct”, is not known. Previous statements of Winston Peters, the New Zealand First leader would indicate that he supported a policy in which MŠori have the right to participate as full citizens, but that there is a national interest to which both MŠori and non-MŠori are subservient.[31] This is consistent with preservation of Parliament as the sole source of sovereignty, with limited recognition of MŠori autonomy consistent with that sovereignty.
Thus the first MMP election produced the best case scenario for MŠori political representation. MŠori members hold the balance of power. The question now arises whether the exercise of that power has advanced both the citizenship rights for MŠori under Article 3, and the right to rangatiratanga under Article 2. While it is too early to make that assessment, it is possible to make some observations on what has been a turbulent nine months in politics in New Zealand Aotearoa.
On a superficial level, the first nine months of MMP government has been a political disaster for both the New Zealand First and National Parties. Political opinion polls have been consistently tracking the decline in popular support for both parties. New Zealand First now rates around 1.7 per cent, a drop from 13 per cent at the time of the election, and the Labour Party has overtaken the National Party as the preferred major party and Helen Clark leads the preferred Prime Minister stakes. The reasons for decline may be summed up as a criticism of the style of government as well as the policies. Some of the MŠori members of the government have displayed a disregard for constitutional conventions and provoked criticism from all sections of the community.
The “warrior” behaviour exhibited by certain MŠori members is inconsistent with the kinder, gentler, consensus politics envisaged by the supporters of MMP. There is insufficient time to analyse the causes and implications of this political style. I concentrate on a more disturbing outcome of this period, and that is the renewed call for the abolition of separate MŠori representation. It is disturbing because I have argued that, without separate representation, it will be difficult not only to achieve equality of citizenship in New Zealand Aotearoa, but also to achieve the recognition of tino rangatiratanga by the current institution of sovereignty, the Parliament.
The argument for abolition of the MŠori seats has arisen from community organisations that espouse a “one New Zealand” policy and are gathering signatures for a petition to have a referendum on the issue, and from the opposition ACT party. An ACT MP Derek Quigley is reported as stating that
MŠori were no more indigenous to New Zealand than other people. All New Zealanders had arrived at some time or another. It was better to talk about different groups than to talk about people who are either indigenous or not. This acknowledges that there are many groups in New Zealand society. MŠori had suffered injustices and they needed to be remedied as quickly as possible so a situation could be reached “where all New Zealanders are treated the same”.[32]
The argument was supported by his leader Richard Prebble, who stated that he was “reaching the conclusion that having MŠori representation is not assisting MŠori, it is not promoting good race relations, but in fact, the opposite. It is indeed dangerous”.[33] One may well ask, dangerous for whom? The reason for this criticism of the MŠori seats is found in the same statement of Mr Prebble who said:
I have been as shocked as the electorate by the strident militancy of the five MŠori MPs. Even MPs like the Honourable John Tuariki Delamere - as he now insists on being called - have given militant speeches on race which in no way reach out over the racial divide and acknowledge that for any sort of future, all races in New Zealand must pay respect to one another if we are going to have any sort of reasonable future.[34]
The only MŠori member of ACT, Donna Awatere, former activist and author of the seminal work MŠori Sovereignty,[35] criticised her leader’s call for a referendum on abolition of the MŠori seats as it would show up a “fatal flaw in democracy”. If there was to be a referendum, however, she is reported as stating it should be amongst MŠori voters only.[36]
This attack on separate MŠori political representation is not merely a reaction to the political style of some MŠori MPs. The attack on the seats masks a deeper underlying concern which can best be described as a fear that acknowledgment of difference will seriously endanger the notion that the peoples of New Zealand Aotearoa have sufficient commonality of values and interests to sustain a stable community founded on democratic principles of individual freedom and equality. Any assertion by MŠori of rangatiratanga that challenges the notion of parliamentary sovereignty is construed by many European/Pakeha, and in particular by those who exercise the authority of Parliament, as being an attack on the fundamental unity and stability of the state.
The developments under MMP have highlighted the fragility of the recognition of the claim of MŠori under the Treaty of Waitangi to rangatiratanga. However difficult the current political conditions for advancing the claim, I argue that it is a claim which is on the political agenda, and it is one that will eventually have to be dealt with. If MŠori separate political representation can survive the current coalition government, Parliament can provide the site for the development of a process through which the MŠori concept of sovereignty, rangatiratanga, can be given practical expression. I am aware of the real difficulties that lie before those who undertake that process. Both MŠori and European/Pakeha will have to work on their understandings of the concept of sovereignty, and the nature of the citizenship that flows from a mutual recognition of two people’s right to sovereignty within one country occupied by them both. There is the added challenge that this process of negotiation must be conducted in the context of a form of globalisation that is determined to make the whole concept of sovereignty, however defined, irrelevant.
[*] Professor of Law, University of Waikato.
[1] Report of the Waitangi Tribunal on the MŠori Electoral Option Claim Wai 413, 10 February, 1994.
[2] They included the 3 pan-tribal national organisations, the National MŠori Congress, the New Zealand MŠori Council, and the MŠori Women’s Welfare League.
[3] [1987] NZLR 641.
[4] At 655-656.
[5] Department of Justice, Principles for Crown Action on the Treaty of Waitangi (1989).
[6] Ibid, 1.
[7] Ibid, 12.
[8] Translation of Professor Hugh Kawharu.
[9] New Zealand MŠori Council v Attorney-General [1994] NZLR 513.
[10] At 517.
[11] Supra note 1, at 14.
[12] Taiaroa v Minister of Justice [1995] 1 NZLR 411, and Taiaroa v Minister of Justice [1995] 2 NZLR 1.
[13] "Constitutional Recognition of the Treaty of Waitangi: Myth or Reality?" in Wilson, M and Yeatman, A (eds) Justice Biculturalism and Difference (1995) 1-17.
[14] Supra note 1, at 15.
[15] "Politicizing Customary Rights: Tino Rangatiratanga and the Re-Contouring of Aotearoa New Zealand", paper delivered at the Conference on Indigenous Rights, Political Theory and Reshaping Australian Institutions (1997) ANU.
[16] Tully, J Strange Multiplicity: Constitutionalism in an age of diversity (1995) 209.
[17] Report of the Royal Commission on the Electoral System Towards A Better Democracy (1986) 7.
[18] Palmer, G and Palmer M Bridled Power: New Zealand Government under MMP (1997) 3.
[19] Ibid, 20.
[20] Ward, A A Show of Justice (1974) 209.
[21] Sorrenson, "A History of MŠori Representation in Parliament" Appendix B in supra note 17, at 20.
[22] Supra note 17, at 6.
[23] Ibid, at 13-14.
[24] Ibid, at 19. One of the main deficiencies was the fact that MŠori had entered a formal alliance with the Labour Party in the 1940s and thereafter the MŠori seats had always been Labour seats. The Commission argued that this provided a disincentive for MŠori to contest the seats. The fact that Labour had only been in government in six years between 1949 and 1984 also gave MŠori a limited opportunity to influence government policy. It must be noted in this context that the National Party never seriously sought to enter into a political alliance with MŠori.
[25] Ibid, at 19.
[26] Ibid, at 88.
[27] Ibid, at 112.
[28] National MŠori Congress Justice Committee, The Treaty of Waitangi and Constitutional Implications of the Electoral Reform Bill Discussion Paper (1993).
[29] Implications for MŠori of the Electoral Reform Bill: Addendum (1993) 3.
[30] The Coalition Agreement (1996) 47.
[31] Peters, "A Time for Leadership" (1995) 25 VUWLR 118-128.
[32] Sunday Star-Times, March 9, 1997.
[33] Sunday Star-Times, March 16, 1997.
[34] Ibid.
[35] Awatere, D MŠori Sovereignty (1984).
[36] New Zealand Herald, 18 March 97.
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