I've always liked the idea of New Zealand having an unwritten constitution. I was a reporter during the time when the Ngāi Tahu and Tainui Treaty settlements were negotiated and passed into law — and when some of the big Treaty cases were working their way through the court system.
It felt like we were watching history in the making as the government, the parliament and the courts wrestled with what the Treaty originally meant, and what it should mean in modern times.
And I could see, through the work of Ngā Kaiwhakapūmau i te Reo, how a small group could use a Treaty claim and, through more than 20 years of dogged litigation over Māori language and broadcasting, make a real difference to our national culture.
When the Māori Party demanded that the government set up a review of our constitution in 2012, I thought there was a chance for more rapid progress. The Constitutional Advisory Panel was led by Tīpene O'Regan, of Ngāi Tahu and Sealord fame, and John Burrows, a former Law Commissioner.
The panel included three former politicians: Deborah Coddington, Michael Cullen and John Luxton. There were three academics: Linda Tuhiwai Smith of Ngāti Awa and Ngāti Porou, Leonie Pihama of Te Ātiawa and Tainui waka, and the late Ranginui Walker of Te Whakatōhea. There were also two teachers: Bernice Mene, who’d been a Silver Fern netballer, and Hinurewa Poutu, who’s a graduate of the kaupapa Māori education system. And two former mayors: Peter Chin of Dunedin and Peter Tennent of New Plymouth.
They worked hard to promote public debate. They held over 100 meetings and attracted more than 5,000 submissions. But constitutions aren’t topics of conversation that are naturally exciting or easy to understand.
So I suspect that many of the submissions focused on a simple issue, like changing our term of parliament from three years to four, and not so much on how our political systems could recognise Māori custom, for example.
Eventually the panel recommended that the government should promote continued “conversations” about our constitutional arrangements — and that it should develop and implement a national strategy for civics and citizenship education. That strategy would include a focus on the Treaty and also on developing teaching resources and on “professional development” for teachers and journalists.
There were many more detailed recommendations. But I thought at the time the report was pretty much a wasted opportunity, because I'm interested in constitutional matters and I wanted progress.
I’ve had a rethink, though, after a series of emails and messages recently bobbed up in my inbox.
The first was a speech by Jamie Tuuta, who chairs Te Ohu Kaimoana. He was criticising the government's process for establishing a Kermadec Ocean Sanctuary between North Cape and Tonga. Jamie argued that marine reserves impinge on the fishing rights guaranteed to Māori in the Treaty Fisheries settlement, and therefore Māori should’ve been fully consulted. He urged iwi to stand together in order to leverage their commercial fishing rights into effective marine management rights.
That's what the Treaty portended. Treaty settlements aren’t a way to put the past behind us. Instead, they’re a golden opportunity to establish a partnership for the future. Every settlement is a chance to build Treaty relationships into the fabric of our government, our constitution, our society and culture. And, by using logical arguments like Jamie's, iwi are gradually forcing the government to acknowledge this.
Next I came across a summary of a recent Supreme Court case by David Williams, one of our celebrated lawyers and legal academics. I'm not a lawyer and I’m hoping that someone better qualified might comment on this, but I thought the decision was very significant.
It involved a breach of trust by the Crown when it failed to reserve, for the customary landowners in Nelson, the “tenths” they were promised when the New Zealand Company acquired their land for settlement. Reserving for the iwi one tenth of the land they sold, in addition to the land they used and occupied, was meant to secure their stake in the new society and economy.
The historical background in the judgment is a fascinating reminder of how seriously the Crown took its obligations under the Treaty — until 1877, when Chief Justice Prendergast decided, in Wi Parata v The Bishop of Wellington, that it was a “simple nullity”.
The Supreme Court found that the Crown's failure to reserve the tenths was not a political decision that happened too long ago to be challenged in court. Instead, it said it was an ongoing breach of trust that the iwi could litigate today.
More importantly, perhaps, it found that the Crown owed a “fiduciary duty” to the descendants of the original customary owners, who could be represented by their rangatira because of the essential collective nature of Māori society. In doing so, the Supreme Court overturned decisions of the High Court and Court of Appeal. And this seems to be a major step forward in recognising the status and rights of tangata whenua.
Our whole capitalist legal system is designed to protect private property rights. Groups can hold property if they have a “legal personality”. In other words, if the group is legally constituted as a company, a trust, an incorporation, or other body that has the same legal rights and obligations as a person.
The demands of the legal system on tangata whenua over our history have been enormous. Think of all the financial and cultural costs that Māori landowners have had to bear as they restructured their social groups in order to be able to raise loans, grant leases, and manage collectively-owned lands.
Or consider the hurdles that Treaty claimants have to overcome to secure a “mandate” that satisfies the Crown. There are the hui and the votes and the legal processes that negotiators have to complete to set up a body that can legally represent the iwi or hapū. They have to do this because whānau, hapū or iwi don’t have a legal personality. They’re founded on the values and practices of rangatiratanga and aren’t part of the capitalist legal culture.
But this Supreme Court decision seems to open the door a crack. It lets in a chink of light so we can see that indigenous social groups can have legal recognition and rights in Aotearoa. It also says the political process of settling Treaty claims doesn’t gazump the legal rights of tangata whenua.
Incidentally, the Supreme Court relied on the UN Declaration on the Rights of Indigenous People, which the Māori Party convinced the National-led government to sign — another small step with potentially big implications.
Anyway, at the same time as I got these messages, I was watching the iwi of the Whanganui River celebrate the confirmation in legislation of their innovative Treaty settlement, which recognises te awa tupua as having a legal personality and its own legal rights. This idea replaces the legal fiction, inherited from Westminster, that a riverbed, its banks and its water are separate entities that can be owned by different people.
Well, all these things represent incremental progress towards recognising the Treaty in our constitution. It's happening through daily interactions between the government, the parliament, the courts and tangata whenua. Our colonial culture is gradually developing into something more bicultural.
Because our constitution is unwritten, our leadership in parliament, the government and the courts, and leaders of tangata whenua, can lead and respond to public opinion. The pace may seem glacial but, like a glacier, I believe the force is inexorable and the change is unstoppable.
Many people like the idea of the certainty of a written constitution. But the danger is that it could fossilise societal values in a particular time warp. It could make the constitution irrelevant as times and circumstances change. I also wonder if it makes a society more litigious.
All constitutions rely on certain conventions to work properly. For instance, in our case, there’s the convention that politicians shouldn’t publicly criticise judges, because judges, by convention, aren’t able to publicly defend themselves.
Then there’s the convention that MPs are elected to represent all the people in their electorate, not just their supporters. And the convention that public servants are expected to give unbiased advice to politicians without fear or favour, irrespective of party allegiance.
But, as we try to direct the constant flow of events, and manage social and cultural changes, we need to know what our constitution is and how it works. And, if we want a constitution founded on the Treaty, we need to fully understand what it says and what it means. Then our own informed decisions and collective actions can help bring about the future we want.
If you take a look at the Constitutional Advisory Panel's website, you’ll see they were pushing for government support for public education programmes about our current arrangements and future options. Fair enough, but it doesn’t come across as an especially bold stance. There’s a mushy touch of “motherhood and apple pie” about it. It seems weak and ineffectual.
But you may remember that people said the same about the Waitangi Tribunal when it was established, because it had no enforceable powers, and could only make recommendations to the government.
However, through its research and logical arguments, and by giving voice to te pani me te rawakore — the alienated and dispossessed — the Tribunal built up a groundswell of public awareness and support that overcame political resistance and set in train a process that is transforming our society for tangata whenua and Pākehā. It has actually been the spearhead for constitutional change.
So, there's still hope for an impact from the work of the constitutional panel. But we, the people, need to take ownership of the issues. If we keep the constitutional conversation going, we can help oil the wheels of change.