Indigenous peoples from around the world come together in Auckland next week to compare notes on the best ways to achieve self-determination.

The kōrero will cover modern treaties in Canada, jurisdictional authorities in Latin America, Indigenous parliaments in Sámi territories in Scandinavia, consent requirements in Phillipines law, and other legal mechanisms to secure Indigenous rights.

For Māori, there’s increasing recognition that the path to self-determination in Aotearoa requires constitutional transformation. Here’s Professor Margaret Mutu explaining what that means and why it’s needed.

Constitutional arrangements are often portrayed as something mysterious that most people can’t engage with. That’s just not true.

It’s really important that we all know what a constitution is, which is simply a set of rules that everyone agrees to abide by.

A country has a constitution so that there is agreement about how government is to function, about who has the power to make rules, about how we’ll abide by them, and who will make sure that we do actually abide by them.

Its purpose is to allow us to live together amicably and get on with each other.

Constitutions are cultural constructs. So it depends on your culture as to what your constitutional construct will be. It will be unsurprising to anyone living in Aotearoa that a Māori constitutional arrangement is very different from a western European one.

The western concept of power is a hierarchical one where sovereignty is the most high and perpetual power over the citizens, and the site of power is the monarch in parliament who has absolute authority and dominion over the land and over people.

The constitutional arrangement for Māori is that our power and authority comes from mana. Mana is absolute and paramount power and authority derived originally from the gods. It’s something that passes down through the generations, and the site of power is in ariki and rangatira, our leaders. Power is bestowed on those leaders by the people and is to be exercised in a way that is tika, which requires decisions be made by consensus. It ensures that our hapū and iwi are completely independent and can make their own decisions for themselves.

Where any citizen agrees to be a part of making the constitutional rules for their country, it is usually a process that fits with their culture and their values.

But where a significant part of the population, particularly those who were in a country before another group came in, have no role whatsoever in deciding what the constitutional arrangements are, then it causes huge distress, impoverishment, marginalisation and the opposite of peaceful relations.

If a constitution is imposed without permission, then everything a people hold dear to them — their cultural values, their way of seeing the world, the way they look after their things and their resources — can be completely ignored.

That is the situation we have in Aotearoa. If we look at what Te Tiriti o Waitangi envisaged, it was first of all that He Whakaputanga, the Declaration of Independence issued by rangatira in 1835, would be adhered to.

He Whakaputanga is a declaration of sovereignty that says that all power and authority rests with rangatira. It affirms that they would never, ever devolve that power, authority and mana to anybody else. It set out that they would come together annually to make laws, to ensure peace was maintained, to ensure trading could continue, and that essentially everybody was living in harmony with each other.

What Te Tiriti o Waitangi then guaranteed in 1840 was that the subjects of the Queen of England could emigrate here. It allowed others to come and reside in this country, but it was conditional. The condition was that the British stop their lawlessness and live under the concept of kāwanatanga.

It remains unclear exactly what kāwanatanga meant back then, but there’s no doubt that it was kāwanatanga belonging to the Queen of England. It was the mechanism by which she was able to stop her people being lawless. There were only 2000 of them here at the time when Te Tiriti was signed, and that was the condition of their settlement.

Up until that point, the British had proven lawless and bothersome and our rangatira could not control them. Which is why rangatira devolved authority to control the British immigrants to Queen Victoria. Under that arrangement she had to ensure that her citizens abided by the law, but she could not interfere with the lives, the resources, the lands of Māori. Māori retained complete control over those.

Yes, we could make lands available to settlers, we could make resources available to them to use, but these things would always be ours.

That is a very different arrangement from what you see now, where Māori have no control over our lands, over our lives, over our resources, and we have watched the whole lot be desecrated, and in many cases destroyed.

That state of affairs continues to this day. It’s not at all what was envisaged when Te Tiriti was signed in 1840.

The British immigrants who arrived here in the 1840s decided that, rather than adhering to the agreement, as signed off in Te Tiriti, they would unilaterally establish their own constitutional arrangement. They did this by issuing a proclamation that falsely stated that Britain had taken over New Zealand.

Then they cherry-picked the Westminster constitutional arrangements that suited them, and imported them. So we ended up with a Westminster-type arrangement very firmly based on the doctrine of discovery. The notion behind the doctrine is that because the immigrants were white and Christian, they could take over the country and reduce the true owners, the Indigenous people, to servitude — or commit genocide against them and strip them of everything.

That action, to this day, underpins our constitutional arrangements in Aotearoa.

The colonisation of this country by the British was illegitimate and illegal, and it’s done huge damage. That has to be fixed. It’s no good trying to just tweak things at the edges because there is a fundamental underlying problem, which is our constitutional arrangements.

The first thing we need to do is for everyone to take part in a long and meaningful conversation about what is needed to ensure that balance is restored in the country. Not just lawyers or experts, but everyone.

Balance would mean an environment where Māori are fully recognised and respected as mana whenua and the original peoples of this country; where tikanga, mātauranga, He Whakaputanga and Te Tiriti are all a natural part of the agreed order of this country and nobody thinks that it is odd or somehow wrong.

It would mean that hapū and iwi, our fundamental social constructs within the Māori world, can exercise their own mana and make their own decisions about their own lives and their own resources.

All people would have a respected constitutional place in our country, and all people would know what that respected place is in this country. We would have constitutional arrangements based on tikanga, He Whakaputanga, Te Tiriti, and an agreed set of values for good, just, and participatory government for and by all peoples that benefits everyone.

But the situation now is that there are many people who derive very little or no benefit from the constitutional arrangements we have in place. That’s not how it should be. The need for constitutional transformation has become quite clear in the Māori world over the last 12 or 13 years. Māori are really invigorated and have taken a very active part in discussions on the constitutional transformation that’s needed.

The foundations that underpin our current constitution are extremely fragile. Examining and transforming those would strengthen democracy for all of us.

Professor Margaret Mutu (Ngāti Kahu, Te Rarawa and Ngāti Whātua) is Professor of Māori Studies at the University of Auckland. She specialises in Māori language and society, Tiriti o Waitangi claims against the British Crown, and Māori rights, particularly as they relate to constitutional matters, fisheries, conservation and resource management. Her publications include two books on the histories, traditions and Tiriti o Waitangi claims of her hapū and iwi and one on Māori rights.

For the past two decades Margaret has chaired Te Rūnanga-ā-Iwi o Ngāti Kahu. In that role, she represents Ngāti Kahu on the National Iwi Chairs Forum where she chairs Te Pou Tikanga, the Aotearoa Independent Monitoring Mechanism, which monitors New Zealand’s compliance with the United Nations Declaration on the Rights of Indigenous Peoples, and Matike Mai Aotearoa — the Independent Working Group on Constitutional Transformation.

This piece was made possible by the Public Interest Journalism Fund.

© E-Tangata, 2022