Indigenous government: what could it mean in Aotearoa/New Zealand?

The concept is neither new to Aotearoa nor unusual internationally.

A discussion about indigenous rights and self-determination in Aotearoa has gone to a new level over the government’s Treaty of Waitangi Principles Bill.

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Getting back to the Bill…

One flaw in the Treaty Principles Bill, as drafted, is its lack of reference to tino rangatiratanga. But neither does it rule out the “unqualified exercise of chieftainship” that’s existed up to the present and would continue into the future, with or without the Bill. The Treaty has no sunset clause, and the Principles Bill explicitly says it does not amend the text of the Treaty/te Tiriti.

The Bill could conceivably be amended by the select committee to acknowledge ongoing tino rangatiratanga before its second reading. But “kill the Bill” has the louder voice among its critics, and that’s what will happen to it, according to the prime minister.

In the unlikely event that Mr Seymour’s Principles Bill were to pass and become law, future legislation concerning indigenous rights and governance could be kept out of its reach, simply by saying it comes under the aegis of the Treaty itself rather than the contemporary “principles thereof”. There’s more than one way to skin a cat, as they say.

It’s not my place to say what should be done, but various models of indigenous government have been talked about. Let’s consider some options.

Te Pāti Māori have a policy to “establish a Māori Parliament”. According to the NZ Election Study 2020, however, the proposal for a Māori upper house of parliament is only supported by a minority of Māori, let alone others.* But there are different forms of parliament. Another option that’s been mooted is a bi-cultural upper house.

What legislative powers would a new upper house possess, though? Would it amend, review or veto bills? What method of representation would it use?

Or there’s the model of devolved parliaments, as in the UK (Scotland, Northern Ireland and Wales), or the Sami parliaments in Scandinavia, for example Norway’s. Such subordinate parliaments are delegated with wide-ranging but constitutionally limited powers. How members of either a Māori or a bi-cultural (co-governance) assembly would be elected (or appointed), whom they’d represent, and how it’d be financed are complex practical issues that would need sorting.

And there would, of course, be objections. Who really wants more politicians – let alone to pay for them? For legitimacy, wouldn’t a substantial constitutional reform need to be put to a referendum – and hence probably be defeated?

Rather than starting from above with a parliament, another model may be to build indigenous governance from the marae upwards, connecting with the local-government Māori wards. These wards, in many local territorial authorities, will be subject to a referendum in 2025, and there’s significant value in voting to retain them.

To make a case that the Crown’s government or kawanatanga hasn’t always been antagonistic to local indigenous self-governance, one can cite the NZ Constitution Act 1852. This Act of the UK parliament established “a General Assembly, to consist of the Governor, a Legislative Council, and House of Representatives” (section 32) as well as Provincial Councils.

Section 71 provided that “the laws, customs and usages” of indigenous New Zealanders “should be maintained for the government of themselves, in all their relations to and dealings with each other”, and that “particular Districts should be set apart” for that purpose.

That concept wasn’t fully implemented, but it was cited by the Kingitanga and Kotahitanga movements in the nineteenth century in support of their claims. One might now question the phrase “set apart”, but, in 1852, the UK parliament saw a place in the NZ constitution for autonomous local indigenous authorities and customary laws. The idea is neither new nor unusual. And, of course, a Māori electoral system and four (now seven) dedicated seats were established in 1867.

You can read more about the history of Māori parliaments, rūnanga and kotahitanga movements on the Te Ara website.

What would be the best model for the twenty-first century? That’s up for debate. Some readers, I guess, would like us all to leave the NZ constitution alone, while others may be up for a constitutional transformation and/or for mana motuhake. But it’s hard to see the matter being resolved politically at present. The Treaty-principles debate in the House was too unruly to allow for any consensus or compromises to emerge. The bill’s opponents radiated more heat than light, while its sponsors struggled to be heard above the noise.

The parties opposing Seymour’s bill have not (yet) produced an alternative draft bill, even though principles of te Tiriti have been developed by the courts. Why not try to codify in statute the judicial opinions that they want to uphold? Are they afraid that this would expose those “principles” to public scrutiny and possible defeat?

If the politics weren’t so dire, what would be the best way to realise the genuine aspirations for indigenous government in Aotearoa? David Seymour’s bill may have painfully ripped off a scab, but could there be a process, with suitably respected leaders, who could find a way to heal things – and even come up with a lasting solution?

As far as I can tell, most people who could be qualified to lead such a process, including past prime ministers, have already committed themselves to firm positions. The country could do with people above the fray to act as trusted third parties for conciliation – which looks unlikely to happen for the time being.

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Footnotes:

* In the 2020 NZES, “when asked about the idea of a Māori upper house, 25 per cent of people of Māori descent were in favour, with 42 per cent opposed.”

J. Curtin, L. Greaves & J. Vowles (eds), A Team of Five Million? The 2020 ‘COVID-19’ New Zealand General Election, Canberra, Australian National University Press, 2024, p. 291.

Kotahitanga, a Māori parliament, at Papawai in Wairarapa in 1897.

Source: Claudia Orange, ‘Te Tiriti o Waitangi – the Treaty of Waitangi - Māori responses to te tiriti – 1880 to 1900’, Te Ara - the Encyclopedia of New Zealand, (accessed 24 November 2024)