List MP Marama Davidson speaking on the settlements: “It is the onus of the Crown to prove that trust.”
The government’s apologies in recent settlement bills are powerful statements, but they do not address the crucial question of power, writes Kennedy Warne.
On November 30, 2016, three Treaty settlement bills, for three Taranaki iwi, were given their final reading in parliament. For the iwi concerned — Ngāruahine, Te Atiawa and Taranaki Iwi — the readings are milestones in a long journey not only towards justice, but towards healing.
“Our colonial history is one of trauma,” said Ngāruahine Trust chair Will Edwards on the day of the readings. One way the Crown acknowledges that trauma and seeks to redress it is through a formal apology, and each piece of legislation (the bills became law on December 5) contains a lengthy statement of the Crown’s regret [see below].
Two months ago, while writing about Parihaka, I was struck by the full-throated admission of the Crown’s offences towards the Taranaki people, and towards the residents of Parihaka in particular. Those offences had caused “immense and enduring harm,” said the Crown.
And, rather than speaking in the third person to an emotionally distant “them,” the apology is worded as a direct confession to “you.” To the people of Parihaka, the Crown admits it “undermined your leadership and your communities, your ability to exercise long-held rights and responsibilities, and your ability to maintain your cultural and spiritual heritage, your language, and your Taranakitanga.”
This is a far cry from the imitation apologies for generic offences that we encounter almost daily from the service sector — “we apologise for any inconvenience you may have experienced.” It is a startlingly frank and specific admission of wrongdoing.
The purpose, clearly, is to bring psychological closure to a traumatic history and establish the conditions for future trust. Nowhere is this intent better expressed than in the Tūhoe Settlement Act, passed in 2014. “Let these words guide our way to a greenstone door — tatau pounamu — which looks back on the past and closes it, which looks forward to the future and opens it.”
But is saying sorry enough?
One of the problems with apologies is that they can reinforce the power relations that led to the offences in the first place.
“What makes an apology work is the exchange of power between the offender and the offended,” wrote the late US psychiatrist Aaron Lazare. “By apologising, you take the shame of your offence and redirect it to yourself. You admit hurting and diminishing someone, and, in effect, say that you are really the one diminished.”
Settler governments, of course, are rarely willing to exchange power, least of all to previously colonised Indigenous people.
“Apologies present a dilemma for State governments,” writes Peter Fitzpatrick, a specialist in imperial legal theory. “To be genuine, they require a certain loss of sovereignty, as the expression of sorrow and regret is for acts of the sovereign that it is acknowledging ought not to have occurred. And yet, such an acknowledgment suggests that the capacity of the sovereign is, or at least ought to be, limited.”
So a genuine apology would require the Crown to admit its sovereignty is not exclusive and all-encompassing — exactly the position Māori have been claiming all along, and which the Waitangi Tribunal found to be the case when examining Ngāpuhi’s claim: “We never ceded sovereignty.”
But this is a bridge too far for the Crown. Like being caught between the proverbial rock and a hard place, the Crown is caught between, as Fitzpatrick puts it, “the responsibility to apologise and the impossibility of doing so.”
To illustrate the point, Fitzpatrick discusses the Australian government’s apology in 2008 to the “stolen generations” of Aboriginal and Torres Strait Islander children forcibly removed from their families during at least six decades of the 20th century.
Then Prime Minister Kevin Rudd’s apology was about “the cold, confronting, uncomfortable truth — facing it, dealing with it, moving on from it,” writes Fitzpatrick, in a chapter of the 2013 book Sovereignty: Frontiers of Possibility. “Having confronted the uncomfortable truth of past wrongdoing, the apology set a clear path to resolving the historical injustice, a path that was fully controlled by the government doing the apologising. The government does the dealing with and determines when the dealing with is done. It is the government, then, that decides when we must all move on.”
Sound familiar?
The problem is that, short of recognising the independent and alternative sovereignty of Indigenous people, there can be no guarantee that history won’t repeat itself — despite, in Australia’s case, parliament’s resolution that “the injustices of the past must never, never happen again.”
“Words cannot bind the future,” write the editors of Sovereignty: Frontiers of Possibility.
“Nothing short of constitutional change can safeguard Aboriginal people from abuses of State power.”
On this side of the Tasman, the same holds true. For all the undoubted honesty and sincerity of the Crown’s apologies, the journey to justice must be as much about sharing power as it is about saying sorry.
“The Crown unreservedly apologises ...”
Crown apologies are a standard feature of Treaty settlement legislation, but they are not token statements of regret. Rather, they contain frank and moving admissions of past transgressions, and promises of future relationship-building based on honour and respect. Here is the apology to one of the three Taranaki iwi whose settlement bills were passed by parliament in November 2016.
The text of the apology offered by the Crown to the tūpuna, to ngā uri o Taranaki Iwi, to the hapū and the whānau of Taranaki Iwi, as set out in the deed of settlement, is as follows:
“(a) The Crown unreservedly apologises for its failure to honour its obligations to Taranaki Iwi under Te Tiriti o Waitangi/the Treaty of Waitangi, and for failing to give appropriate respect to the mana and rangatiratanga of Taranaki Iwi.
(b) The Crown deeply regrets its actions that led to the outbreak of war in Taranaki, and the lasting impact those wars have had on its relationship with Taranaki Iwi. The Crown unreservedly apologises for the many injustices carried out against Taranaki Iwi during those wars, including the shelling of settlements and the use of scorched earth tactics, and for the severe distress, hardship and death that those actions caused.
(c) The Crown is deeply sorry for the immense prejudice it caused by confiscating the land that had supported Taranaki Iwi for centuries. The raupatu was indiscriminate, unjust, and unconscionable. The Crown deeply regrets the serious damage that the raupatu and its subsequent actions with respect to your remaining lands has caused to the social structure, economy, welfare, and development of Taranaki Iwi. The Crown deeply regrets the actions it took to suspend the ordinary course of law and imprison Taranaki Iwi people without trial for participating in campaigns of non-violent resistance. The Crown sincerely apologises to those tūpuna who it imprisoned far from their homes for political reasons, to the whānau who grieved and struggled to survive in the absence of their loved ones, to their uri, and to Taranaki Iwi.
(d) The Crown unreservedly apologises to Taranaki Iwi, and to the Taranaki Iwi people of Parihaka past and present, for its unconscionable actions at Parihaka; for invading their settlement, for systematically dismantling their community, for destroying their ability to sustain themselves, and for assaulting their human rights. The Crown deeply regrets the immense and enduring harm that these actions caused to Parihaka and its people. Over several generations, the Crown’s breaches of Te Tiriti o Waitangi/the Treaty of Waitangi have undermined your leadership and your communities, your ability to exercise long-held rights and responsibilities, and your ability to maintain your cultural and spiritual heritage, your language, and your Taranakitanga.
(e) Through this settlement and this apology, the Crown hopes to ease the heavy burden of grievance and sorrow that Taranaki Iwi has carried for so many years, and to assist Taranaki Iwi in its pursuit of a better future. To this end, the Crown looks forward to building a relationship with Taranaki Iwi based on mutual trust, co-operation, and respect for Te Tiriti o Waitangi/the Treaty of Waitangi and its principles.”
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