Speaker by Various Artists


E Tu, Bill?

by Kane Te Manakura

National leader John Key laid out his philosophical colours - and got his headlines - this week: but what of his more experienced deputy, Bill English? The assumption has been that the new Parliamentary national party will move away from the attitude towards Maori and the Treaty that characterised Don Brash's tenure: it's an assumption largely based on English's 2005 Chapman lecture, which was seen as a repudiation of the Brash rhetoric.

But what did the speech actually say? We asked Public Address reader Kane Te Manakura, who heard English deliver it, and noted its thoughtful tone, to revisit the Chapman lecture and check the message for us. Take it away, Kane …

I should make it clear that I am no expert in Treaty politics or Constitutional Law. But, when asked to do a guest post critique of Bill English’s 2005 Chapman lecture I thought no problem - read a couple of books, pop round to Ranginui Walker’s for a kapu ti and korero, and something will come together.

I attended the lecture with the Maori/Pasifika Grad Students flying column ready to get medieval on some redneck ass after Orewa I . But I came out thinking ‘well I fundamentally disagree with English’s position, but at least I can’t smell B.S. & my ears don’t hurt from excessive use of a dogwhistle. So going for the foundations of his argument made sense.

Then Che, Mark & Deborah started posting on the topic and it’s clear they would have me for breakfast in any legal –political discussion. Furthermore I studied the lecture closely and started to agree with English on some of his fundamentals, though for very different reasons. So I’ve left the big-picture critique to people who know better and focussed on going over the lecture with a thick red pen for internal inconsistencies and a fine tooth comb for fudging.

I’ve now run out of red ink but I gotta truck load of fudge.

To his credit, English opens by acknowledging in a non-alarmist way that a culturally diverse Aotearoa is a reality, and isn’t necessarily something to fear; rather it is a challenge to be negotiated. His recipe for managing this is summed up thusly:

Making cultural diversity work will be a marker of successful nations in the 21st century. Our market economy and liberal democracy produce economic growth and tolerable freedom. But we depend on enough shared culture, including respect for the rule of law, to keep this engine of opportunity and aspiration working.

And the place for Maori? Telly or sportsfield:

They [Pakeha] know Maori have a special place and they are almost universally happy to see it recognised in popular culture.

So within a Western liberal democratic and free-market structured State Maori are free to be Billy T and Anika Moa but not Eva Rickard, or Tame Iti . We are given the generous allowance to be a musical-sporting-all-singing-all-dancing people, but not an independent-in-control-of-our-own-political-and-economic-destiny people.

Ignoring the political and legal arguments against this - which hopefully will be discussed in the comments to this post far better than I ever could - this is an impractical vision for the relationship between tangata whenua and the Crown. The fact is, devolution of a few of the State’s functions to Maori service providers is not enough to satisfy the desire most Maori have to be the masters of their own destiny, let alone being allowed by the Crown to be Maori on TV. Why? The simple fact is the fundamental structure of the type of society that English envisages doesn’t work for most Maori, and we know it.

Demands for tino rangatiratanga have been made since the signing of the Treaty of Waitangi and will keep on being made until the oppression of Maori as a people ends. As Hauraki Tonganui said at Orakau to Capt. Mair:

E hoa, ka whawhai tonu ahau ki a koe, ake ake!

Furthermore, the way English characterises devolution shows a grave lack of understanding for the issues that surround Treaty settlement:

To date, when the Government has insisted that only public institutions can deliver services, Maori have used the leverage of the Treaty to prise open access to service delivery on their terms … I salute Maori success in challenging the State. But I can’t justify that freedom being made exclusively available to them on the basis of a specious constitutional theory.

The implication here is that gains in managerial control over State resources by Maori, and indeed the entire Treaty settlement process, is about exploitation and profit via political means. He claims the language of blame, debt, and guilt has been the catalyst of the Treaty settlement process. Unfortunately the idea that perhaps settlement is also about justice and reconciliation and reparation doesn’t get a look-in. If English can’t/won’t acknowledge that then there’s little hope that he’ll acknowledge the legal and constitutional ramifications of the Treaty upon Aotearoa.

Bill English should be applauded for asserting that the role of the Treaty in contemporary Aotearoa must be subject to vigorous open debate. The practice of negotiating between an elite few “down behind an old shed instead of on the Marae” is an apt metaphor. This is a large reason behind why many New Zealanders don’t think of Treaty settlements as being primary about justice and reconciliation.

He sums up fairly well conventional Pakeha elite wisdom on the Treaty in his 6 point exposition on ‘Treatyology’, which he claims are all debatable propositions. As English said this I turned to a fellow member of the flying column and hissed:

Damn straight they're debatable, what about the Maori perspective that holds the Crown was given right to governance and iwi/hapu retained sovereign power? What of iwi and hapu like mine that didn’t sign the Treaty, what’s their relationship to the colonial government that was imposed by brutal force? Time’s ripe for public debate about those concerns.

Obviously I was disappointed, but not surprised that English had no intention to touch on the idea that perhaps the Treaty is about Pakeha rights as opposed to Maori rights.

However the lack of willingness to debate anything did surprise me. The 6 pillars of ‘Treatyology’ are dismissed as “bold assertions that many New Zealanders do not accept” without further explanation of their boldness nor their assertiveness. Hone Harawira’s claim that the Treaty is Aotearoa’s foundational document and sets out a basis for ethnic relations and resource management is dismissed as an ideological statement.

English helpfully notes that “ideologies are always contestable” while never getting round to doing any, y’know, contesting. It’s a pattern that mars his lecture: lack of cogent refutation of other perspectives makes his argument hollow and his alternative vision rather tenuous.

This is not just intellectual laziness, for I know English is a smart guy. I believe he’s intentionally trying to mystify ‘Treatyology’. Consider the manner in which he patronises ‘the public’ over Lord Cooke’s decision in the Lands case:

There is too much emphasis in our educational institutions on the Treaty as a constitution. To be fair, the thinking has been influenced by the Courts and in particular Lord Cooke’s judgment in the Lands case. The public have not learned to breathe the rarefied air of constitutional debate on the mountaintops of the judiciary and Parliament. And it is thin air.

And that’s all he says about it. In failing to explain the decision, let alone coherently refute it, English obscures a big step on the path by which we have come to present ‘understandings’ of where the Treaty is located in our legal and political traditions. The implicit suggestion here is either the thought behind the decision is ivory tower folly, or the public is too stupid to get it. Maybe it’s both.

To return to English’s recipe for managing cultural diversity, let’s consider his proposition that respect for the rule of law is essential. It certainly seems like a good and fair idea … until we take Habeas Corpus , considered central to the liberty of the individual in nations with a common law system.

1880 Maori Prisoners' Act: 200 Maori arrested in Taranaki for preventing the surveying of confiscated land. Most were kept in prison for an indefinite period without trial. Surveying was the first step in the process of alienating Maori from their land, a fact Maori recognised thus were anxious to prevent it. This is the suspension of Habeas Corpus of Maori ‘rebels’ version 2.0 … did I mention that this right is guaranteed to British citizens, thus to Maori under the Treaty? Oh that’s right; in 1877 Judge Pendergrast conveniently declared the Treaty a legal nullity. (McHugh, ‘A History of Crown Sovereignty in New Zealand’ in Histories Power and Loss: 2001)

1880 West Coast Settlement Act: Any Maori in Taranaki could be arrested without a warrant and jailed for two years hard labour if they in any way hindered the surveying of property. This is third suspension of habeas corpus specifically for Maori – see the pattern emerging? The Crown revokes the rule of law against Maori interests whenever it suits the Crown. This all happened over 100 years ago, have things improved to the point where the Crown can be trusted to actually respect the rule of law?

2004 Foreshore and Seabed Act: Vests ownership of foreshore and seabed of Aotearoa with the Crown, over-riding a ruling by the Court of Appeal that 8 Marlborough iwi had a right to have the nature of their ‘aboriginal title’ (a concept of common law) investigated and decided upon by the Maori Land Court. Despite the MSM characterising the issue as being entirely about a modern raupatu , I was in the hikoi to Wellington and the issue that raised the most hackles was the way in which the Crown planned to legislate away the right due legal process from people based on their race/ethnicity. And this was done by a supposedly liberal, soft-on-Maori regime.

This is just a small selection of occasions where the Crown has seen fit to ignore the rule of law in favour of achieving the strategic goals of undermining tino rangatiratanga and mana Maori, and disrupting the “full exclusive and undisturbed possession of their [Maori] Lands and Estates Forests Fisheries and other properties…” (Treaty of Waitangi, Article the Second: 1840) So is it any wonder that peeps like Hone Harawira insist on the Treaty as a foundational and quasi-constitutional arrangement?

Without the Treaty as a constraint on parliamentary power there is nothing to legally force the Crown to respect the rule of law. History continues to show the Crown will only respect rule of law if and when it suits the purposes of the Crown, and the rights and welfare of all others , especially Maori, are demonstrably secondary.

Bill English is likely to form a major part of the next government, so should we take his word on this respect for rule of law and civil society rhetoric? I just hope he doesn’t share his ‘eloquent friend’ Simon Upton’s view:

…whatever legitimacy the Crown failed to derive from the Treaty, it acquired through the effective and durable assertion of power … the British Crown and subsequently the New Zealand Parliament effected a revolutionary seizure of power … revolution depends on what is done not what is legal, or necessarily moral or just.

(quoted in Kelsey, ‘From Flagpoles to Pine Trees’ in Spoonley et al (eds), Nga Patai: 1996 p.178, my emphasis.)
Translation: My dad had/has bigger and more guns than your dad, so we’ll play by my rules, which I reserve the right to change or ignore at any time. Quite how to reconcile revolution with respect for the law is beyond me. Unfortunately English appears to articulate a rather similar position to Upton’s.

One can argue that the Treaty was once a constitution of sorts … [t]he Treaty order lasted about 30 years, and crashed in a war … [d]uring that time territorial self-government by Maori might have been possible, but that world has vanished.

English advocates a better understanding of Pakeha history as a means to harmonious ethnic relations saying “New Zealand possesses a sufficiently mature identity that we can try to understand our past better without feeling our 21st century identity is threatened by it.” He then goes on to an exposition of the history of the English (people) overcoming tribal and religious divisions, the Reformation and Counter-reformation. He holds up the Magna Carta as a document of civil society that has continuity in the here and now of Aotearoa….

Hang on… WTF? The Magna Carta was signed 800 years ago on the other side of the world to settle a scuffle between a bunch of privileged Europeans. Somehow it’s equally if not more relevant to Crown-Maori relations in Aotearoa than a treaty signed just up the road by the Crown and Maori only 167 years ago?

Well, actually it makes sense if you buy into the way English has fudged the Treaty as being but one source of cohesion between different races in Aotearoa (Hone Harawira and many others are somewhat guilty of this too). The Treaty thus becomes just one more element of common law to consider.
If I had my wits about me I would’ve, upon hearing this, exclaimed loudly:

Can someone please point out to the honourable member that the Treaty of Waitangi was not signed between two ethnic groups … but between multiple sovereign states. Therefore, it is governed by international laws dealing with inter-state relations, and not the ethnicity of the signatories.

But I’m just not clever like Professor Paul Moon.
Essentially, English proposes that if we are all nice to each other, and treat each other with respect (albeit within a Pakeha elite-defined legal, political and economic framework) then everything will be ok. He makes an appeal to an ideal of European civil society as a solid basis for this mutual respect:

Respect for the dead, the team work ethic, careful neighbourliness, the bond of marriage, protection of minorities, egalitarianism.

It’s in a continuum with historian Michael King’s notion that New Zealanders are essentially fair minded and egalitarian, therefore serious ethnic conflict has been avoided and will be avoided in the future as we rationally work out our differences and internal tensions. Nice idea excepting that it’s twaddle. As recently as 1982 the Race Relations Office publicly suggested New Zealand was on the brink of serious racial conflict. (See Race Relations Office report Race Against Time, 1982)

I’ve always found it impossible to understand this appeal to the inherent fairness of New Zealanders. I have yet to see any empirical evidence of a fairness-in-the-face-of-ethnic-difference-gene, or the presence of the fair-play-inducing chemical in Aotearoa’s water, so it seems like vague waffle to me. Take another look over the long roll call of legislative violations of the Treaty of Waitangi; consider this typical 1861 editorial from the Taranaki Herald regarding local Maori:

We are at liberty at any time and place to do our best to extirpate them as any other animals of wild and ferocious nature. Their lives and land are forfeit.

Too historically distant? Ok, just 2 words: Don Brash. He managed to lift the National Party’s popularity by 17% off the back of the racial dogwhistle of Orewa I. Think on the reality that the Crown pays out only 2% of the real value of any Treaty claim . Is that fair? This probably says more about our elected officials than about us as New Zealanders, but even if so the point still stands - appealing to qualities supposedly held by the populace is redundant when the powerful consistently behave in ways contradictory to these qualities.

Clearly all New Zealanders (Maori, Samoan, Chinese, Fe/Male, Pakeha, etc) are just as prone to being blighted by prejudice, racism and the cynicism as any other population. This is why relying on a mutual respect between different ethnicities (or any kind of social grouping you care to think of) and respect for the rule of law is a laughable basis for a fair and equitable multicultural society. Less mirth inducing alternatives are most welcome.

Ok, that’s all pretty standard argument you’d expect from a Maori: now I’m gonna get a little weird on it: Despite all the criticism above, there are two crucial elements of English’s lecture that I (think) support. For example English is opposed to treating the Treaty as a constitution or developing State Bi-culturalism. I couldn’t agree more, but for radically different reasons.

English, for reasons he chooses not to define in the lecture, finds the constitutional theory built up around the Treaty “specious”. I’m assuming it’s because he thinks the Treaty, or our Pakeha forefathers’ bigger guns, stripped Maori of their sovereignty. I totally disagree with this – the iwi and hapu that were signatories to the Treaty ceded governance to the Crown, but they retained their sovereignty.

The te reo

Maori translation of the Treaty clearly says as much – the Crown gets kawanatanga and Maori retain tino rangatiratanga . It’s the te reo Maori translation of the Treaty that counts as it is the version virtually all parties debated and signed. As Dame Anne Slamond notes, the English language version is merely an interesting artifact. (Slack, Bullshit Backlash and Bleeding Hearts: 2004 p.41)

However I do not agree with the way the Treaty is conventionally thought to be a quasi-constitutional document for all iwi/hapu vis a vis Hone Harawira’s position. Many did not sign the Treaty therefore they (and I) are not subject to the mana of the Treaty. These iwi should be free to negotiate their own governmental and constitutional relationship with the Crown free from ‘Treaty baggage’. The Crown has unilaterally pushed the Treaty onto all Maori as the way of establishing relationships and settling injustices.
The idea that the Treaty be incorporated into some form of written constitution frightens me more than anything Don Brash ever had to say, but not because it will lead to ‘separatism’ or any threatening practice of Maori sovereignty which English seems to fear - kinda the opposite actually. History shows that the Crown will act to preserve its illegally acquired sovereignty and a Treaty-based constitution would inevitably continue this.

Even when the Crown has apparently the best intentions they tend to miss the mark when it comes to Maori and the Treaty. Take the 1989 booklet Principles for Crown Action on the Treaty of Waitangi that authors such as David Slack (2004; p. 184) have cited as useful in clarifying principles of the Treaty. I accept this was an attempt in good faith but virtually all Maori, even the highly conservative Bishop Whakahuihui Vercoe, were incensed at what Jane Kelsey describes

“a crude unilateral attempt to redefine the Treaty … which sidelined the Maori text and affirmed the superior position of the Crown.” (1996, p.184)

On Waitangi Day 1990 Bishop Vercoe said:

What I have come here for is to renew the ties that made us a nation in 1840 … I want the Treaty to stand firmly as the unity, the means by which we are made one nation … It is what we are trying to establish so that my tino rangatiratanga is the same as your tino rangatiratanga … I want to say to the government: don’t produce the principles of the Treaty – the Treaty is already there.

Like the Principles for Crown Action, any written constitution will largely reflect the ideologies, objectives and concerns of the people who write it, i.e. Pakeha elite, (and perhaps a couple of ‘House Hories’). It would permanently fix constitutional arrangements with tino rangatiratanga Maori being firmly sidelined. The Principles for Crown Action were written, according to Kelsey (1996, p.185), without consultation with Maori interest groups, and I would expect a written constitution to be little different. Unilateral action by the Crown has consistently marred its dealings with Maori and the recent decision to arbitrarily introduce a deadline for lodging of historical Waitangi Tribunal claims continues this history
So, no thanks, I’d rather take my chances with English’s civil society model -- at least it provides more room for change and evolution. As the population ‘browns’ I hope we will see common law and cvil society evolve in ways that allow for tino rangatiratanga and mana motuhake to be achieved in terms defined by Maori, iwi and hapu. But this would depend on increasing the political-economic power of Maori people.
And this brings me to official Bi-culturalism and English’s apparent desire to avoid a bifurcated state and a differentiated citizenship. I’m not sure if all that many Maori want those things either, though you’d think so from the way the MSM and politicians portray the Maori Sovereignty movement(s).
I should stress here that these terms – tino rangatiratanga, sovereignty, mana motuhake have often widely divergent meanings and sometimes contradictory implications. Atuanui forbid I should be accused of suggesting ‘Maoridom’ – or ‘Pakehadom’ for that matter – has a unified plan and voice.

Like English, I’ve long viewed state-sponsored Bi-culturalism with warily and wearily, but was never sure why until I read an article by Evan Poata-Smith. ‘The Evolution of Contemporary Maori Protest’ (1st published in

Nga Patai) convincingly argues that official Bi-culturalism has encouraged the following things:

A fundamental shift in the theoretical underpinnings of Maori critique and activism from neo-Marxism to a form of cultural-nationalism. The last 25 years has seen “increasing use of culture and identity as a strategy for dealing with Maori disadvantage.” Rediscovery of Maori identity and culture has become an end in itself and as “as substitute for far-reaching social change has [this] been a disaster.” (Poata-Smith: 1994; p. 122)

Cultural-nationalism has led to the practice of ethno-cultural chauvinism amongst many Maori, (primarily against Pakeha), and an essentialising of the struggle down to a personalised conflict in which Pakeha values and people are inherently bad, while their Maori counterparts are inherently virtuous. The result has been losses in non-Maori allies such as working-class and urban liberal activist groups. Poata-Smith suggests this division has been a strategic aim of many who promote official Bi-culturalism - a means to maintain the hegemony of Pakeha elites in Aotearoa.

Other divisions that have widened due to the parallel projects of Maori cultural-nationalism and Bi-culturalism have been that between a supposedly more authentic tribally connected class, and urban Maori, and between the Maori middle and working classes. The material benefits, and to a lesser extent, cultural benefits of Bi-culturalism and Treaty settlements have been restricted to a few corporate warriors, and the tribal and middle classes. These are the groups that have had the political and economic wherewithal to take advantage of the few opportunities offered by official Bi-culturalism.

These lucky few have enforced a form of what Jeff Sissons calls an oppressive authenticity on those not in a position to reclaim the markers of some sort of retro-authentic cultural identity, such as moko and whakapapa. (Sissons, First Peoples: 2006 p.37-61 This is in a

continuum with the sort of cultural chauvinism many Maori practice against non-Maori. (Sissons argues that oppressive authenticity, which has its root in biological definitions of indigeneity, is an ideological tool used by colonists against colonised, but the extension I make here is by no means tenuous.)

Despite the much vaunted Maori renaissance the majority of us have experienced little change, and sometime a fall, in living standards since 1980. Bi-culturalism and its handmaiden Maori cultural-nationalism have encouraged us to divert our energies into cultural rather than political-economic struggles and we have stopped reaching out to other oppressed groups. Knowing how to speak and write in te reo Maori, and knowing tikanga is very important, but it doesn’t seem to help Maori live longer or better lives. Denying genuinely empathetic and humble Pakeha a chance to know about these things doesn’t help either.

I passionately argue with any of my Maori brethren who will listen that we need to stop looking so much to the Treaty and the false promises of official Bi-culturalism. Those initiatives are based on a notion that once the truth is known, justice will be done, and our wrongs will be righted by our Treaty partner. It’s so admirable and so very naïve. As Prof. Linda Smith puts it in Decolonizing Methodologies (1999 p.34):

We assume that when ‘the truth comes out’ it will prove that what happened was wrong and therefore the system (tribunals, the courts, the government) will set things right. We believe that history is also about justice, that understanding history will enlighten our decisions about the future. Wrong ... In fact history is mostly about power. It is [mostly] the story of the powerful and how they become powerful, and then how they use their power to keep them in positions [of power].

Maori need to let go of the idea that negotiation and ‘partnership’ with the Crown is the only viable path to tino rangatiratnga and mana motuhake. As a keen history pupil I have no faith in the Crown whatsoever as a true and honest Treaty partner. Instead Maori should get real and focus on rebuilding strategic political and economic alliances with workers, urban liberals, and with building new alliances with ethnic minorities, especially with the Austronesian and Asian diaspora in Aotearoa.

With regard to other ethnic minorities, Maori political and academic leaders must do better than cite the anthropology-derived idea of a shared cultural and racial origin as a reason for solidarity. As Tze Ming Mok has noted this is widely regarded by non-Maori (and some Maori) as an insufficient reason for admiring and co-operating with someone you would otherwise think of as a threatening foreigner. What is needed is a foundation of shared social, cultural and political-economic objectives. What I’m talking about is a kaupapa that is specific, practical and pragmatic.

Whether these strategic alliances are theoretically and practically possible – and the leadership Maori have shown with indigenous peoples globally suggests they are – is the debate on cultural diversity I would much rather have than the tired old ‘arguments’ English rolled out in his 2005 Chapman lecture.

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