A New Model for Iwi Authority – Iwi Member Engagement

October 31, 2013

There has been some internal discussions with my home iwi, Te Ātiawa recently over issues of representation and engagement between the newly mandated post-settlement governance entity and the Hapū and individual members of the Iwi.  My impression of these discussions is that there is a degree of disillusionment amongst Māori over the lack of real engagement between our institutions and the people.  The real, and potential, economic, political, and cultural strength of these institutions vis-a-vis the wider New Zealand society cannot be doubted.  That said, I am of the opinion that unless changes are made to how we engage with our communities, the perceived disconnect between our institutions and the people they represent will only increase.

The current engagement process is top-heavy, and sporadic.  For many, monthly newsletters and the once a year AGM are the primary sources of information about the activities of the Iwi at the institutional level.  Decisions are made by the elected Trustees and communicated down to Hapū and individual members.  The net effect of this process is to shut out iwi members from the decision-making process and completes the move within Te Ao Māori from a collective decision-making entity to a representative democracy model whereby we elect our leaders to make decisions for us.

This does not need to be the case.  New technology, especially community-driven technology, has been at the forefront of community-driven movements around the world.  From the Occupy movement through to the Arab Spring, participants have been using social media, and specially designed technology platforms to communicate in real-time across a large number of individuals – all of whom are able to contribute to the decision-making process and, ultimately, be part of the making of the final decision.  We should learn from, and implement these models in our interactions at the Iwi level.

My initial proposal comprises two components: increasing the reporting from the Iwi Authority to members; and making better use of online technologies to facilitate discussions.

1: Increased Reporting

As noted above, the primary means of communication between Iwi Authorities and members is through occasional newsletters and the AGM.  The problem with this approach is that by the time the AGM rolls around, it is too late to do anything other than complain about the activities of the previous year, and elect new Trustees who you hope will do a better job.  The rise of cloud-based accounting platform Xero and other management reporting platforms allow for the provision of up to the minute financial information and other material that can be communicated to iwi members on a monthly basis.

A monthly management report should, therefore, be a minimum requirement for our Iwi Authorities.  By setting out the financial performance and a run down of key decisions and activities undertaken each month, and communicating these to iwi members via hui on a monthly basis will strengthen the accountability of Iwi Authorities, and improve the lines of communication between the Authority and its members.

Furthermore, monthly hui will provide for the greater involvement of iwi members in the decision-making process.  Currently, a lot of decisions are made by the Iwi Authority behind closed doors, and members have a simple yes or no vote to make.  A community-driven process will allow for greater input by members into both the options available and the final decision.  By tabling a proposal at a monthly hui, inviting discussion on a range of options, and coming to decision based on consensus is a decision-making process more in line with tikanga than the current model.  Controls will still need to be in place to ensure financial sustainability, but that should not be used as an excuse to deny Iwi members from contributing in a meaningful way to the decision-making process.

2: Online Collaboration

The second stage in my proposal to increase engagement is through the greater adoption and use of online social media and community collaboration technologies.  Some Iwi and Hapū use social media such as Facebook and twitter to communicate and discuss issues with their members, and do so in an effective way.  Yet, given the enormous power of such platforms to connect communities their adoption by Iwi is less than ideal.  And while most Māori – especially Rangatahi Māori – have a Facebook or twitter account, these platforms are just the beginning.  Online collaboration platforms such as Loomio offer groups the space to discuss issues and ideas in a private online setting, and come to a consensus-based position.

The power in these technologies is that they have essentially modernised the historical practice.  They provide a space for those outside the rohē to discuss issues and provide for a continuous discussion on the issues that are important to the Iwi or Hapū – not just a one-off discussion at a monthly hui or an AGM.

Online collaboration allows for a 24/7, 365 day discussion on Iwi activities and progress. Perhaps this is why some of our leaders are fearful of wider engagement with the communities that they are elected to represent.


The Māori Economic Development Framework

September 9, 2013

I have spent a lot of time these last few months thinking about Māori economic development.   The result of this thinking is the Ka Tōnuitanga Māori Economic Framework.  The framework is designed to put structure around an on-going conversation on economic development that reflects a Māori worldview.  There are three components to this framework:

  1. The Principles of Māori Economic Development
  2. The Values of Māori Economic Development
  3. The Financial Sustainability Guidelines for Organisations pursuing Māori Economic Development

As part of my work in the Deloitte Māori Sector Team I have had a large number of discussions with colleagues and iwi organisations on establishing and growing Māori corporate entities, and on the wider kaupapa of Māori economic development.  These conversations have contributed immensely to the development of this framework.  The framework is a work in progress, and I am keen to receive any input that you feel is relevant to the development of this work.

The Principles of Māori Economic Development

The core principle of Māori economic development is that there should be a nexus between the social, cultural, and economic development of Māori.  Every Iwi organisation that I have spoken to, and worked with, other the past six years has placed the development of their people and the retention of the culture and tikanga specific to them at the forefront of their development activities.

The aim of a traditional business is to create financial value for its owners.  The aim of many of our iwi organisations is something more than that.  The development of people, the preservation of culture, the protection of the environment, and the increase in financial wealth of iwi members are all aims of iwi organisations.  It is these wider aims that distinguish an iwi organisation from traditional businesses.   The principles of Māori economic development will, therefore, flow from this wider kaupapa of an iwi organisation.

As I progress through the development of this framework, more principles will be added to the list.  Feel free to suggest some in the comments below.

The Values of Māori Economic Development

I will note at this stage that these values are still very much in draft form.  I have a lot more reading, thinking, and discussing to undertake before I am confident in stating the core values of Māori economic development.  The values set out below serve as a starting point:

  1. Tōnuitanga – Prosperity
  2. Kaitiakitanga – Preservation / Sustainability
  3. Tangata – People
  4. Whenua – Land & Resources
  5. Tikanga –Values and Process
  6. Whānau – Collectivism

The Financial Sustainability Guidelines

Principles and values are meaningless without a viable, long-term approach to managing the financial assets of an iwi organisation.  Successful organisations, in whatever form they take, all adhere to some, or all, of the guidelines listed below.

  1. Set a clear vision and strategy
  2. Establish an appropriate entity structure
  3. Separate governance and management
  4. Preserve the pūtea
  5. Distribute no more than 4% of the overall pūtea each year
  6. Invest in what you know: Invest in land; Invest in people; Invest in culture
  7. Use bankroll and percentages to make speculative investments
  8. Surround yourself with experienced advisors
  9. Be open and transparent with financial information
  10. Provide financial education to members

Over the next ten weeks I want to progress this conversation with a wider discussion of the financial sustainability guidelines for organisations pursuing Māori economic development.  Each week I will discuss one of the ten guidelines in detail.

I am keen to hear your thoughts on these guidelines, and the wider framework, so leave a comment below and get the discussion started.


An Important Question for Shane Jones

September 2, 2013

I must admit to have only been paying minimal attention to the Labour party leader selection process, but it does appear to be a worthwhile exercise for any political party to go through.  What I have noticed is that one very important question has, to the best of my knowledge, not yet been posed to Shane Jones.  A question which, when asked, will determine the outcome of his bid for Labour party leader.

We know what he wants to do with the $50m gorilla, that he has women and sexism issues, and that his heavy use of metaphors and apparently off-the-cuff speeches have a tendency to confuse those of the new school who believe politics to be a series of set piece manoeuvres.  Yet where he has been strangely silent is on Māori issues.  So, my question for Shane Jones is this:

Matua, as Labour leader, what will you do in relation to Te Takutai Moana Act and Māori rights in the foreshore and seabed?

Because if Shane Jones truly wants to be our first Māori Prime Minister, then his answer to this question is really really important.

Update: I have since been informed that this question was put to Shane Jones on Native Affairs last week and that he had no intention of re-addressing the Takutai Moana Act.  If the new leader of the Labour Māori Labour caucus does not want to re-visit one of the greatest confiscations in our history, then that tells you all you need to know about Labour’s attitude towards Māori.


10 Insights from the Māori Accountants Hui

August 12, 2013

Following my highly publicised move from law to accountancy, I had the opportunity to attend the Ngā Kaitatau Māori o Aotearoa Hui-a-Tau (the Māori Accountants Hui) held in Wellington on July 26 and 27. It was a wonderfully uplifting and positive experience, and great to meet my new peers.  I sat down over the weekend and collated my notes from the hui and today I share ten insights that I gained from the hui.

  1. There is a lot of positivity amongst Māori working in the accountancy, business advisory, and Iwi organisation space.  Everyone remains aware of the enormous issues that still face Iwi, Hapū, and Whānau Māori – but this awareness is tempered by the knowledge of the exciting work that is being undertaken to address these issues.
  2. This shift in mindset has not gone unnoticed by the Government.  Bill English, in his keynote speech, made the point that Iwi have moved from asking for hand-outs and grants to talking about cost-drivers and social and economic opportunities.
  3. The Government is responding to this change through the way that it interacts with Māori.  The recently released “He Kai Kei Aku Ringa – The Crown-Māori Economic Growth Partnership” report provides a clear action plan to develop capacity amongst Māori over the next five years.
  4. We are also starting to see, for the first time, an all of Government approach to interacting with Māori.  The days of “Māori Affairs” is over, and the new CEO of Te Puni Kokiri, Michelle Hippolite, made an explicit acknowledgement of this in her keynote address.  TPK perceives itself as a knowledge and relationship organisation and is working hard to change the perception that it is still the one-stop-shop that Māori Affairs used to be.
  5. Speaking of Michelle Hippolite, she posited a thought-provoking statement on how we define ourselves.  Essentially, the question that she posed is whether “Māori” is still appropriate today?  In the future there might be a paradigm shift in how we perceive ourselves, a shift which focuses more on Iwi, Hapū, and Whānau Māori.
  6. Moving to the economic, we were treated to an insightful presentation by Terry Goodtrack, the President and CEO of the Canadian Aboriginal Financial Officers Association.  He made three points regarding the success of aboriginal business. First, best practice aboriginal businesses have the following characteristics: Political independence; Strong governance; Strategic direction; Community consultation; Strong networks and relationships; and a clear vision.
  7. His second insight immediately caught my interest given my current research on indigenous sovereignty:  According to the Harvard Project, sovereign communities economically outperform those communities who do not exercise sovereignty over their decision-making processes.
  8. His third insight was short, to the point, and a clear statement on how we should proceed into the future with our economic development: The way forward is not to just partner with someone – build the development and own it.  Self-reliance is the end game.
  9. A wealth of information came out of the technical break-out sessions.  My two favourites were a session on China and a session on Taxation.  The three core messages from the session on interacting with China were: relationships matter so put someone on the ground; our single biggest opportunity with China is in cross-cultural knowledge transfer; and the key to building a long-term relationship is to learn the language.
  10. The Taxation session, presented by our very own Deloitte Tax Partner, Mark Lash, provided a good introduction to the importance of selecting the right corporate structure when trading overseas so as to avoid a potential large tax liability.  More than anything, it reinforced the need to ensure that our Iwi organisations and Māori businesses have access to high-quality legal and accountancy advice.

All-in-all, it was a great conference, and I would recommend it to any of you working within our Iwi organisations.  The 2014 Hui will be held next July in Gisborne.


Sovereignty: An Introduction

July 10, 2013

This post is an extract from my, as yet unfinished, LLM Thesis.  With submissions to the Constitutional Advisory Panel closing on 31 July 2013, I felt it was timely that I share my introductory framework for conceptualising sovereignty in Aotearoa-New Zealand.  At 4,000 words this is a substantial read, but countless hours have gone into formulating this position so you will be rewarded for reading this in its entirety.  Over time I plan to share more of my Thesis as it is refined and developed.  I retain all intellectual property in this piece of work, please cite and reference this article in the appropriate style.

INTRODUCTION

On 6 February 1840, a group of Ngāpuhi1 Rangatira met with representatives of Queen Victoria of Great Britain, led by Captain William Hobson, to sign Te Tiriti o Waitangi.2 Te Tiriti o Waitangi is a short text, nothing more than a preamble and three Articles. Yet in Aotearoa-New Zealand,3 Te Tiriti o Waitangi exists as a modern-day Magna Carta,4 a text significant as the founding document of New Zealand. More than this, a major debate flowing from Te Tiriti o Waitangi (and the core kaupapa5 of this Thesis) is the purported transfer of sovereignty from Iwi and Hapū6 to the British Crown.7

This Thesis is intended as an exploration of the concept of sovereignty in the context of the Nation State of New Zealand. In a Thesis which confronts numerous loaded terminologies, each with their own baggage, common (mis-)understandings, and legal definitions; “sovereignty” is the most loaded of them all. It is a concept which has been notoriously difficult to define, and even more difficult to frame in anything other than the theoretical. Sovereignty takes many forms, can be expressed using numerous terminologies, and has the ability to confound all those who attempt to discuss it. At its core, however, sovereignty is power.

The aim of this Thesis is to analyse, and re-define, the concept of sovereignty as it exists within Aotearoa-New Zealand. In the eight chapters that follow, I will attempt to frame sovereignty as something other than the all-encompassing power of the Nation State, a belief so common that it has be accepted at all levels of the apparatus of our Nation State. All three branches of the Crown; Parliament, the Executive, and the Judiciary; accept, and perpetuate, the idea that the Crown is the sole sovereign power.

This Thesis argues that sovereignty, rather than existing as an absolute exercise of power by the Crown; is, in fact, a multi-faceted concept, comprising many forms. Each form of sovereignty is a building block towards our understanding of what sovereignty actually is. At its core, sovereignty is power. The exercise of that power is not restricted to a sole entity in the Nation State. The Crown does not hold a monopoly on the exercise of power.

Chapter Two: Sovereignty – A Framework

In the second chapter I provide a framework for conceptualising the discussion of sovereignty. Five forms of sovereignty are discussed, each of which provide an insight into the exercise of sovereignty. Sovereignty as power; De Jure and De Facto sovereignty; Internal sovereignty and external sovereignty; Community sovereignty; and A spectrum of (indigenous) sovereignty.

The idea of sovereignty as power was established in the opening paragraphs of this Thesis. The exercise of power is the overarching theme that emerged from the research for this Thesis. Every society, in some form or another, has established rules relating to the exercise of power. Considered in this light, sovereignty is nothing more than the legal term for power.

The exercise of power is the underlying factor behind the second form of sovereignty, the idea of De Jure sovereignty and De Facto sovereignty. De Jure sovereignty is the sovereignty which is exercised according to law. De Facto sovereignty is that sovereignty which is exercised in fact or, in other words, the actual sovereignty that is experienced in a given territorial location.

The third form of sovereignty is the distinction between internal sovereignty and external sovereignty. Internal sovereignty refers to the sovereignty exercised within a given territory. In the context of the Nation State it manifests in the day to day operations of the Nation State. External sovereignty refers to the engagement of one sovereign power with another.

The fourth form of sovereignty is what I refer to as “community sovereignty”. Community sovereignty flows from the idea, most famously established in the Constitution of the United States of America, that sovereignty resides in the people. This conception is expanded upon to establish a form of sovereignty dependent not on a Nation State for its existence but, rather, a community of common interests.

The fifth, and final, form of sovereignty is the ideal that sovereignty (and in particular, indigenous sovereignty) exists along a spectrum. The exercise of power can exist in a weak-form, such as through the inclusion of groups within the decision making processes of a Nation State; in the strong-form, Nation State exercise of sovereignty; and in varying forms between.

These five forms of sovereignty form the framework on which the remainder of this Thesis is developed. Each will be discussed in greater detail in chapter two, and in the relevant sections of the remaining chapters.

Chapter Three: Indigenous Conceptions of Sovereignty

Chapter three canvasses several indigenous viewpoints of sovereignty, all of which establish indigenous sovereignty as a valid exercise of sovereignty. I establish that indigenous sovereignty exists both independently of, and in conjunction with, the sovereignty of the Nation-State which encompasses indigenous societies.

I commence the chapter with a discussion of the Tikanga perspectives of sovereignty. In Aotearoa, the sovereignty of Iwi and Hapū is grounded in our status as Tangata Whenua. Sovereignty flows from the whenua, and the status of Iwi and Hapū as Tangata Whenua.

According to Tikanga, the sovereignty of Iwi and Hapū was established through the occupation of the land, alongside the deep spiritual connections that has been formed over time with that land.

This sovereignty, represented in Te Reo by a number of different concepts such as Mana, Manawhenua, Kingitanga, and Tino Rangatiratanga to name several, cannot be readily assumed away by the legal fictions of a colonising people. Through the practice of Ahi Kā, Tikanga holds that the sovereignty of Iwi and Hapū remains intact even in the light of a purported extinguishment of that sovereignty by another Iwi or Hapū.

Chapter Four: Sovereignty in International Law

Chapter four explores the concept of sovereignty in international law. In this chapter I set out the argument that International Law has consistently recognised indigenous sovereignty. From its early formations by Vattel, through to the United Nations Declaration on the Rights of Indigenous Peoples (“UNDRIP”), indigenous sovereignty is afforded due recognition by International Law.

This chapter also discusses the conflict that arises between indigenous sovereignty, being the sovereignty of the original inhabitants of a territory; and the classical Westphalian8 conception of sovereignty, being the all-encompassing and absolute exercise of power claimed by the Nation State. 

The “recognition”9 of indigenous sovereignty is currently being trumped by political arguments disguised as legal arguments. Early formulations of international law recognised the sovereignty of indigenous society’s vis-à-vis the colonising European powers. The sea change came when the European Nation-States sought to justify their foreign aggressions. Indigenous societies became “uncivilised”, and could not be considered a true sovereign due to the lack of the formal institutions of sovereignty.

This line of legal analysis, known as Positivism, came to prominence in the late 19th Century. Colonisation was justified by the European Nation States on the notion that indigenous peoples were “semi-primitive barbarians”10 who lacked the formal institutions necessary to constitute a sovereign people. By formal institutions, such positivist though required the exercise of Government to look identical to their exercise of Government before it would recognise sovereignty. This conception ignores the complex legal, political, and governance structures of indigenous societies. It is, unfortunately, a conception of sovereignty that has remained in force in New Zealand, with many politicians and scholars still maintaining that Māori were a bunch of “semi-primitive barbarians” who required protection from themselves.

The final section in chapter four discusses indigenous sovereignty in international law, and focuses on the United Nations Declaration on the Rights of Indigenous Peoples. The Declaration provides for the recognition of the right of self-determination of indigenous peoples and while the Declaration is intended to be aspirational rather than binding on Nation States, it does provide support at the international level for the sovereign rights of indigenous peoples.

Chapter Five: Te Tiriti o Waitangi – A Treaty of Cession?

In Chapter five I discuss the intersection of two sovereign powers, the two texts that arose from this intersection and the perspectives of the two sovereign powers on the meaning and effect of these two texts.

The first such text is He Whakaputanga O Te Rangatiratanga O Nu Tireni (“He Whakaputanga”) – The Declaration of Independence of the United Tribes of New Zealand, signed in 1835. He Whakaputanga was a declaration to the world of the sovereignty of the Iwi and Hapū of Aotearoa. It did not establish that sovereignty for, as set out in Chapter Three, the sovereignty of Iwi and Hapū has existed from the point of inhabitation of Aotearoa.

The second text is Te Tiriti o Waitangi. Te Tiriti o Waitangi, as noted in paragraph 1 above, is a treaty entered into between Ngāpuhi Rangatira and Queen Victoria. The meaning and effect of Te Tiriti o Waitangi depends on whether you view Te Tiriti o Waitangi from the Māori perspective, or from the Crown perspective.

For Iwi and Hapū, Te Tiriti o Waitangi was debated in Te Reo, written in Te Reo, and signed in Te Reo. The authoritative text is, therefore, Te Tiriti o Waitangi and not The Treaty of Waitangi. The two texts are materially different, and the Māori perspective is that the text debated, written, and signed is, for all intents and purposes, authoritative. Te Tiriti o Waitangi, while providing the British Crown with the power of Kawanatanga – effectively the ability to establish a form of governance in Aotearoa, reserved to Iwi and Hapū their Tino Rangatiratanga – their sovereignty.

The apparent conflict between Kawanatanga and Tino Rangatiratanga in Te Tiriti o Waitangi can be explained by reference to the idea of shared, or dual, sovereignty. Concerned over the increasing lawlessness of Pākehā in Aotearoa, Māori entered into Te Tiriti o Waitangi on the belief that it would grant the British Crown the power to exercise their authority over Pākehā, and ensure the maintenance of law and order from the visiting, and settled, Pākehā.

Subsequent practice supports this understanding. Iwi and Hapū continued to exercise their Tino Rangatiratanga over their respective territories. In the case of Te Rohe Pōtae, the exercise of sovereignty lasted well into the late 19th Century.

The Crown, on the other hand, holds a different perspective of The Treaty of Waitangi. The Treaty of Waitangi, while not sufficient on its own to amount to a treaty of cession of indigenous sovereignty, was a critical component in a series of jurisdictional steps that the British Crown undertook to secure the transfer of sovereignty from Iwi and Hapū to Queen Victoria.

Such jurisdictional steps included the securing of the free consent of Māori through Te Tiriti o Waitangi; the declaration of sovereignty in Europe through the gazetting of Proclamations to this effect; and, ultimately, the settlement of New Zealand.

As I discuss the Crown perspectives of Te Tiriti o Waitangi, so do I critique the foundations of the assertion of Crown sovereignty on three grounds:

  1. The Crown’s misapplication of the prevailing international law in 1840 pertaining to the acquisition of sovereignty;
  2. The Crown’s flawed reliance on acquiring the free consent of Māori; and
  3. The Positivist-centric application of law in the Crown’s assessment of the acquisition of sovereignty.

I conclude the Chapter by setting out the proposition that De Jure sovereignty remained vested in Iwi and Hapū following the signing of Te Tiriti o Waitangi.

Chapter Six: Indigenous Sovereignty in Aotearoa-New Zealand

Following on from the concluding section of Chapter Five, I open Chapter Six with the proposition that absolute Crown sovereignty over New Zealand is a myth. While the Crown exercises De Facto sovereignty, it can hold no claim to De Jure sovereignty. According to Tikanga and International Law, there has been no transfer of De Jure sovereignty from Iwi and Hapū to the Crown, and a mere assertion that there has is not sufficient to legally support such a proposition.11

Central to the issue of indigenous sovereignty in Aotearoa-New Zealand is the position of Te Tiriti o Waitangi in the New Zealand legal system. The treatment of Te Tiriti o Waitangi by the Judiciary, the Legislature, and the Executive are all canvassed, with several case studies being discussed.

Finally, Chapter Six concludes with a discussion on the legal recognition of indigenous sovereignty in Aotearoa-New Zealand. Specifically, a case study canvasses the decisions of the District and High Courts of New Zealand in which Māori have sought to disavow the jurisdiction of the Court on the basis that the Crown has no claim to sovereignty over Māori.

What this case study demonstrates is that the New Zealand Judiciary ignores almost absolutely the claim of indigenous sovereignty by Māori. Admittedly, the cases argued are not ideal cases to argue that the Courts should uphold the sovereignty of Iwi and Hapū, but they do highlight the nature of the challenge facing Iwi and Hapū seeking to have the right of Tino Rangatiratanga upheld.

Chapter Seven: The Spectrum of Indigenous Sovereignty

In Chapter Sever the spectrum of indigenous sovereignty is considered in some detail. Each of the following four manifestations of indigenous sovereignty is discussed, with reference to case studies, to highlight the advantages and disadvantages of each, and the suitability of each as upholding indigenous sovereignty in Aotearoa-New Zealand:

  1. Sovereignty;
  2. Self-Management;
  3. Co-Management; and
  4. Participatory Government.

Sovereignty refers to the exercise of power and control by a body independent of the Nation State. The case study briefly leaves the realm of indigenous sovereignty in discussing the unique position of sporting bodies in Aotearoa-New Zealand, specifically the New Zealand Rugby Football Union (“The NZRFU”). As will be argued, the NZRFU exercises a form of internal sovereignty, insofar as its actions relate to the running of the game of Rugby, specifically, the NZRFU exercises the almost complete control of activities that occur on the field of play.

Self-Management exists where the Nation State either provides Indigenous Nations with the finances to address an issue in the manner of their individual choosing, or at the very least places no barriers in the way of Indigenous Nations who seek to so act. The case study focuses on the Whānau Ora scheme implemented by the current National Party Government, in conjunction with the Māori Party. Whānau Ora intends to place financial resources directly with Whānau, and provide those Whānau with the tools and resources to self-manage their affairs.

Co-Management refers to the sharing of control and management between the Indigenous Nation and the Nation State, and is most often implemented over Mountains, Parks, and Rivers. The case study focus on a more specific aspect of Co-Management, that of the legislative protection of Te Tiriti o Waitangi. Such legislative protections provide Iwi and Hapū with a greater degree of influence over Crown decisions and actions and, in light of recent events surrounding the partial sale of State-Owned Assets, a more effective legislative regime is advocated for.

Finally, Participatory Government refers to the inclusion of Indigenous Nations, or Indigenous Peoples, in the day to day operations of the Nation State – from the administrative functions right through to the legislative functions. The case study discusses the Māori electorates, from their inception through to modern-day issues surrounding the retention of these electorates.

Chapter Eight: Conclusion

To conclude this Thesis, Chapter Eight sets out the series of propositions on which the argument presented in this Thesis is based. Each proposition is reference to the Chapter and Section of this Thesis in which they are discussed.

A Personal Perspective: Ko Wai Au?12

In order to understand this Thesis, the reader should first understand who I am. My understandings of sovereignty, and in this context, indigenous sovereignty are grounded in my legal, political, and spiritual beliefs. I write this Thesis not only as an Academic, but also as a Practicing Barrister and Solicitor specialising in Te Tiriti o Waitangi issues and, most importantly, as a member of the Te Ātiawa Iwi in Taranaki. Every thesis should be seen in the context in which they are written, and this is no different. I am a descendant of Te Ātiawa and the discussion of indigenous sovereignty is, therefore, not being undertaken in the abstract.

Having made the decision to write this LLM Thesis, I reflected on the issue of assessing sovereignty through a Kaupapa Māori paradigm rather than the dominant Westminster paradigm.  The problem with adhering to the Westminster paradigm is that it will, be definition, favour the rights of the colonisers over the colonised.  Māori rights can never be fully realised within the Westminster paradigm, the system itself will never allow it.  It is only within a Kaupapa Māori paradigm that Māori rights can be upheld in their entirety.

That is why it is imperative for Māori to analyse documents like Te Tiriti o Waitangi from a Kaupapa Māori paradigm.  Tikanga Māori is a living body of law which needs to be encouraged to grow and develop.  As a qualified Māori lawyer, I have a responsibility to contribute to the growth and development of Tikanga Māori and to use a Kaupapa Māori paradigm whenever I approach a legal issue.

As a qualified Barrister and Solicitor, grounded in both the Westminster and Tikanga legal systems, I have a unique appreciation of the conflict over the most political word of all – sovereignty. Sovereignty is power and sovereignty is control. The sum total of history is this battle for power and control. Those who exercise it will do all they can to retain it. Those who want it will do everything in their power to obtain it. Whether you call it sovereignty, Tino Rangatiratanga, Mana, or self determination, the core conflict is the same: power and control.

As a Māori, the pain of living in our ancestral homeland and being denied the exercise of our own political and legal systems can be overwhelming. Every day is a constant reminder of what was once ours and what has been taken from us. To see a foreign power control our lands is demoralising and demeaning and has negative consequences on the psyche of Te Ao Māori.

At its core, the usurpation of power by the European Colonisers from indigenous societies is unjust, unethical, and can have no basis in a legal system founded on principles of justice, fairness, and equality. The usurpation of power by the British in Aotearoa is, according to Tikanga, illegal and unjustifiable. The fact that it occurred in clear breach of the promises made in Te Tiriti o Waitangi makes the usurpation that much more egregious.

As a Māori, in writing this Thesis, I have been forced to confront some uncomfortable truths. Power and control in Aotearoa-New Zealand is exercised by the Crown. The concepts and sites of power13 are vested in the traditional Westphalian notion of the all-encompassing, all-powerful, ideal of Sovereignty – the Nation State. Sovereignty is vested in the Queen of New Zealand and exercised through her Government. I initially conceptualised this Thesis as being written from first principles, arguing that Queen Elizabeth II has no claim to the sovereignty of Aotearoa. Realistically, such a paper would achieve nothing. The absence of a legal claim to sovereignty (De Jure sovereignty) does not negate the exercise of sovereignty (De Facto sovereignty). In law, the only law of the land, Tikanga, the claim to sovereignty exercised by Queen Elizabeth II is a de facto sovereignty only. Legal sovereignty remains vested in the indigenous Māori communities who never ceded such sovereignty.

In embarking on this path I open myself up to criticism from my Māori brethren for failing to provide and analysis grounded solely in Kaupapa Māori. Such a critique has already been provided by scholars such as Moana Jackson (and others) and it is not my intention to attempt to replicate their illustrious efforts. I aim to begin a discussion which will, ultimately, provide a long-lasting and durable solution to the conflict between the Westphalian notion of sovereignty and the Tikanga expression of Tino Rangatiratanga – a solution which is grounded in both the Westminster Legal System and Tikanga Māori.

Is this an ambitious goal? Perhaps. And it is perhaps too much to expect from a Master of Laws Thesis? I sense so. Yet, one of the key lessons that I have learned during my time at the Bar is that change, real everlasting change, only arises through great ambition and great courage. I set out in this Thesis to destroy the comfortable myth of Crown sovereignty over New Zealand, in doing so, it is my hope (as it is the hope of all who undertake a Masters of Law Thesis) that the effect of this work is not entirely academic.

References
1 Ngāpuhi is a confederation of Iwi and Hapū (tribes) located in the Northland region of New Zealand.
2 This Thesis adopts the practice of referring to the document signed at Waitangi on February 6, 1840, as Te Tiriti o Waitangi for the singular reason that the Ngāpuhi Rangatira, and Captain William Hobson signed the document written in Te Reo. The Treaty of Waitangi Act 1975 provides for both Te Tiriti o Waitangi and The Treaty of Waitangi to be of equal standing in our legal system, and it is common practice for The Treaty of Waitangi to be referred to as having both a Te Reo text and an English text. This is, in my view, incorrect. The two documents are materially different, despite numerous attempts by Pākehā (non-Māori) authors to argue as such.
3 I have taken great care to precisely define the terms and phrases used throughout this Thesis, and the use of Aotearoa, New Zealand and Aotearoa-New Zealand is context dependent. This Thesis discusses two distinct legal systems in an attempt to understand the concept of sovereignty, and when discussing such distinct legal systems, framing the debate using the language of one system in favour of the other will inevitably result in a biased analysis. New Zealand is the officially recognised designation, but New Zealand is the British name given to the land which Māori now refer to as Aotearoa (Given the absence of agreement over the name used prior to 1840, the contemporary “Aotearoa” has been adopted). The use of the name, New Zealand, on its own, denotes an acceptance of the myth of British sovereignty over our land. In this Thesis I advocate for the recognition of a dual system of sovereignty, encompassing both the Pākehā (New Zealand) and the Māori (Aotearoa) claims to sovereignty. Recognising that both Pākehā and Māori coexist in this land, the name Aotearoa/New Zealand is adopted. The distinctions between Aotearoa, New Zealand, and Aotearoa-New Zealand are designed to recognise both the different and shared spaces that we occupy on this land.
4 See, Paul McHugh The Māori Magna Carta: New Zealand Law and the Treaty of Waitangi (Oxford University Press, Auckland, 1991).
5 Issue for discussion.
6 I have attempted to avoid the use of the term Māori throughout this thesis to refer to the indigenous population of Aotearoa, instead preferring the use of Iwi and Hapū. While Māori adequately refers to the whole, and is occasionally used in exclusion (for example, references to non-Māori), it is more accurate, when speaking of indigenous sovereignty, to refer to the individual communities that exist within Te Ao Māori. While interconnected on many levels, Iwi and Hapū are considered within Te Ao Māori to be independent of each other, much as Nation-States are independent of each other. Our existence within a defined Nation-State as one people is a framing of the Westminster System and not of our own. The artificial boundaries drawn up by the Colonial powers only serve to divide indigenous communities. I will refer to such societies as Indigenous Nations throughout this thesis, in keeping with the desire of indigenous societies to maintain their independence.
7 References to the Crown refer to the Government of the de facto sovereign in right of New Zealand: Her Majesty, Queen Victoria and her successors, with the current sovereign being Her Majesty, Queen Elizabeth II.
8 By Westphalian Sovereignty, I am referring to the idea of sovereignty as residing in the Nation State, to the exclusion of all foreign actors, which emerged following the Peace of Westphalia in 1648. In keeping with the theme of the precise defining of terms used in this Thesis, Westphalian Sovereignty is adopted when referring to the sovereignty traditionally claimed by Nation States and, in particular, the form of sovereignty claimed by the Crown. Readers should note that references to Westphalian Sovereignty or to a Westphalian tradition should be distinguished to references to the Westminster system or to the Westminster tradition. The latter refers to the particular legal system imported into New Zealand from Great Britain through the New Zealand Constitution Act 1852 (Imperial).
9 It is important to note that indigenous sovereignty does not need to be recognised in order to exist. In Aotearoa, the sovereignty of Iwi and Hapū has existed since inhabitation and it is the contention of this Thesis that such sovereignty remains intact today, albeit in a different form from that exercised prior to 1840. This is discussed in further detail in Chapter 6, Section 6.1 below. The practical realities are, however, that the Nation State can ignore claims of indigenous sovereignty provided it maintains its numerical advantage.
10 See, Wi Parata v The Bishop of Wellington (1877). This is discussed further in Chapter Six, Section 6.2 below.
11When I speak of legality in this context, I do not do so in the Westminster sense of legality – i.e, I am not referring to whether an act is legal according to the rules set out by the Legislative branch of the Crown. Legality, in this context, refers to the legal position when considering the three streams of law that operate within Aotearoa-New Zealand: Westminster Law, Tikanga, and International Law.
12 Who am I?
13 The idea of the concepts and sites of power originates from Moana Jackson.

Valmaine Toki on Māori Governance

June 15, 2013

I came across a good article by Valmaine Toki entitled “Culture – The Foundation of Maori Governance” in February’s edition of NZ Lawyer.

Many Maori organisations are explicitly driven by tikanga, kawa, and values (for example in employment, tangihanga and cultural leave policies) that take into account the aspirations of whanau, hapu, and iwi. Cultural considerations will sometimes take precedence over purely economic factors. For instance, many coastal iwi will adopt a provision to enable Maori to fish for their quota. In many instances, this quota package can be leased for a greater commercial value, however, the cultural or tikanga value of undertaking the fishing themselves will override the commercial gain.

Maori organisations may also have a Maori dimension in procedure such as the use of Te Reo (language), mihi (greet), karakia (prayer), koha (donation), hospitality for manuhiri (visitors), manaakitanga (care for), whanaungatanga (relative), kotahi tanga (one), consensus decision making, and regular consultation hui. These elements should support the general principles of good governance. Subsequently, it is important to have people with expertise in tikanga and kawa on the Board.

Valmaine goes on to argue that the current legal structures do not adequately meet the needs of Māori Iwi and Hapū entities.  Despite this criticism, I believe that there is flexibility in our legal system for more creative and Māori-specific organisational structures.  The great risk is in being the first organisation to try something new.

There are a lot of exciting initiatives making their way through the pipeline in relation to Māori governance and I hope to be able to write about these in greater detail in the future.  In the meantime, I am interested in hearing your thoughts on what we can do to enhance Māori governance.


Ka Tōnuitanga: Towards Prosperity

June 4, 2013

These past two months have seen some large changes take place in my life, and to reflect the new direction that my career is taking I have decided to retire the Māori Law and Politics branding.  While I will continue to write on legal and political issues as they relate to Te Ao Māori, I want to incorporate my current mahi into this site and share the knowledge and insights that I am gaining from working in a more commercial environment.

And so, Ka Tōnuitanga is born.  Ka Tōnuitanga is a philosophy that reflects our collective journey towards prosperity and my mission is to provide high quality information and discussions on issues relating to Law, Policy, and Economic Development in Te Ao Māori.  As more and more Iwi and Hapū move into a post-settlement phase, and as more and more amazing Māori businesses take off both in Aotearoa and around the world, it is time for a greater focus on economic development – and more specifically, in framing a model of economics and economic development that is grounded in kaupapa Māori.

The history of Māori economics is perhaps the least well-known aspect of our history.  Trade and entrepreneurship are as much a part of our history as our relation to the whenua and our collective social organisation.  The Māori economy initially thrived as a result of European contact – with 18th and 19th century trade reported with Britain, U.S.A, the Pacific Islands, Australia, and even into China and India.  Māori prospered on the back of this trade, only for the gains to be wiped out through the violent imposition of colonial rule over Aotearoa.  173 years later, and Iwi and Hapū throughout the country once again have a substantial asset base on which to build a prosperous future.

It is this story of our economic history that I want to weave into our current discussions about law, policy, and economic development.  I look at all the amazing work being undertaken in this field and feel massive excitement for our future.  As we continue to build our human and physical asset base, a prosperous future for every Māori is achievable.  We can learn a great deal about economics and trade from a look at our own history and I am a firm believer that a prosperous future for all Māori requires us to incorporate these kaupapa Māori economic principles into our Māori business organisations.  Achieving this future is my mission, and through Ka Tōnuitanga I aim to connect with like-minded Māori who are working towards this same mission.

Thank you to everyone who has supported me over these past three years of Māori Law and Politics, and especially through these past two months as I have transitioned from my life as a lawyer to that of a business consultant at Deloitte.  I have a wonderful community of readers, and it is amazing to interact with you on a daily basis.  I look forward to you joining me on this new journey.


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