“In Aotearoa, we’ve got one people being regulated by another people’s imposed legal system. That’s inequality,” says Professor Claire Charters. (Photo supplied)

Aotearoa is one of only a few countries in the world without a written constitution. As a result, we have “some of the weakest protections of minorities in the world,” says Professor Claire Charters.  

This week, she brought together thinkers and academics for a hui at Auckland University to talk about what designing, and possibly writing down, our constitution might require. Here, she tells Siena Yates about why imagining that possibility is so important.

 

New Zealand has something called an “unwritten constitution”. What does that actually mean? And why might it be better to have it written down instead?

We have a so-called “unwritten constitution” because that’s the English system that we inherited from Westminster. What it means is that we don’t have one single constitutional document — instead our constitution is set out across various pieces of legislation and convention.

But having a single document, or not, isn’t really the issue. The fundamental problem in New Zealand is that we don’t have a constitution based on what was agreed in Te Tiriti o Waitangi, which was shared power between Māori and the state

I don’t know whether that necessarily requires a written constitution or not, but it might. The problem with a written constitution is that it can become quite rigid. But in saying that, it’s also easier to enforce. So it’s certainly something we need to think about and be discussing.

What we definitely do need, though, is greater checks on parliamentary and executive power. Constitutional reform could be part of making that happen.

Call me a pessimist but is that kind of reform even possible? These days it feels like you can barely mention Te Tiriti without starting a fight — especially under the current coalition government.

That’s exactly why we need to start having these conversations at home, and in our communities, first. If we bring in all peoples in Aotearoa — our Pasifika brothers and sisters, our tāngata tiriti, our tāngata whaikaha, our rainbow community and so on — then, after that, we can look at taking those ideas to a national level.

It can often feel like the conversation isn’t happening. But it is happening, and it has been for a long time. Our conference this week comes off the back of a number of National Iwi Chairs Forum conferences — and off the back of Matike Mai, He Puapua, the hui-ā-motu at Tūrangawaewae, and the hui at Waitangi. And then, historically, it follows other movements for constitutional change, which include the Kīngitanga and Kōtahitanga movements.

So, this is a conversation that’s been continuing, and I think will keep continuing — even if this government doesn’t want to be part of it. I don’t think the current government is amenable to the realisation of tino rangatiratanga, which means that we have to take a long-term view.

But, as Margaret Mutu says, if David Seymour has achieved one thing, it’s that he’s united us. The level of resistance to this government, the level of kōtahitanga that we feel in te ao Māori, together with tāngata Tiriti who support us, is more than I’ve felt since the foreshore and seabed movement.

So, if you consider that and the work we’re doing now as part of a longer-term strategy, this government could turn out to be a good thing, ultimately.

In the meantime, though, what kind of damage is this government doing to our reputation for upholding rights on an international stage, do you think?

Aotearoa has always relied heavily on our international reputation for being progressive when it comes to Indigenous peoples’ rights. That’s not something we can maintain under the current government, especially with its explicit pushback on the UN Declaration on the Rights of Indigenous Peoples.

In my role as Rongomau Taketake with the Human Rights Commission, I’ve been approached quite a few times by international journalists from outlets like Al Jazeera, to talk about what’s going on here on a local level. So it’s definitely being noticed in some circles.

Frankly, I’ve never thought our reputation for upholding Indigenous rights was warranted — except maybe with respect to te reo Māori. But we mustn’t forget that our reo revitalisation was Māori-driven. The state support only came later.

I remember in a previous kōrero you had with us, you said that, actually, we have some of the weakest protections for Indigenous people in the whole world. What are some of the things we should have that we don’t?

That’s a tricky question. We at least need to have some mechanism that overrides parliamentary breaches of Indigenous peoples’ rights. For example, when our parliament overturned a court decision and took away the potential for Māori to seek customary rights to the foreshore and seabed. Or when politicians decided to shut down Te Aka Whai Ora. We need some kind of mechanism that will keep those sorts of actions in check, and allow them to be properly challenged, or stopped.

In a broader sense, what else would you like to see in a constitution?

I’d like to see shared governance. The basic structures for that are laid out in the Matike Mai report from 2016. It describes the different spheres of authority and how those might be shared.

I’d like to see recognition of Māori authority in various areas, so that it is tikanga which regulates our lives as Māori. And in the kāwanatanga space, I would like to see greater representation of Māori, and a greater understanding of Māori forms of governance.

I’d also like to see, as a value in the constitution or as a principle, the protection of Papatūānuku. I would also think it’s necessary to ensure that there’s robust protection for all our peoples, and the protection of human rights in there as well.

If we got to the point of laying down a new constitution, how would we even go about that?

First of all, it’s a process that I expect would take years. It would need a lot of consultation on the ground with communities to work out, first, what should be in it and what people want. And, at some point, it would require technicians to sit around and draft the texts and seek amendments to whatever laws would need changing.

We’d also have to figure out how discussions between Māori and the Crown would take place. We could determine that through constitutional conventions that describe which entities are relevant.

My instinct is that Crown-Māori relationships would take place at hapū level, but there would also need to be national coordination among Māori.

So our conference this week looked at what structures or institutions we could put on the table. Do particular iwi and hapū come up with their own regulation within their rohe? And how do we approach decision-making? Maybe with a national Māori body? Or do we have a Māori senate?

We certainly don’t have to be constrained by the British constitution: that a parliament is supreme. That doesn’t work if we want a constitution that might be based on Te Tiriti.

The possibilities are exciting to us — but threatening to others. People call these ideas separatist, or “preferential” to Māori when, as David Seymour would put it,  “we’re all equal”. I’m curious, how do you personally respond to those ideas?

My response is that, to achieve equality, you don’t treat everybody the same. Just like “one person, one vote” doesn’t create equality — it gives the majority the power to tyrannize the minority. What we need is balance, either through the protection of rights, or in some other way.

There’s a fundamental structural advantage for those who come from the system, or who have entered the system voluntarily, or at the very least, are subject to it. As opposed to other people who’ve said: “No, we’ve never given consent to that.”

In Aotearoa, we’ve got one people being regulated by another people’s imposed legal system, contrary to what was agreed in Te Tiriti o Waitangi. That’s inequality. To enable equality, we’d need to each be regulated by our own systems, or at least by a new system that means something to all of us and warrants our support.

What would that look like, in day-to-day life? Would we have our own hospitals? Our own court systems? I won’t lie, it feels like an impossible dream.

That’s effectively what happens now in the United States with Native American tribes. Some do have their own court systems, they run their own health systems, they have their own education system, they have their own kind of governance structures, and so on. So, that is definitely one model.

Or we could have something like the Sami people have, where you have Sami parliaments which advise central government, and other state structures. The parliaments have authority over particular matters that are of a special interest to Sami, like reindeer herding and environmental issues.

So, there are lots of different models that are in place and working overseas. But we’ve been colonised to think that the sharing of governance is not possible in this country.

If we look at examples from elsewhere, we can start to gain confidence and think a bit more imaginatively. And then, like Moana Jackson said, let’s imagine the impossible.

I have hope that we can get there. You just have to remember it’s a long-term strategy. Things will go back and forth, of course. But I think we can have confidence in our rangatahi especially. Their consciousness will lead to change over time.

If nothing else, I think environmental pressures, like what we’ve seen from Cyclone Gabrielle and other extreme weather events, will get people thinking about fundamental and basic change to our constitution. Because what we’ve got is a system based on extractive capitalism, and it’s not working for the vast majority of us.

We need to change those fundamental bases of existence, those bases of society. Rethinking the legitimacy of the state, which is a state where Te Tiriti is respected, is part of that.

When I look at all the changes that I’ve seen in my lifetime, they were things that I wouldn’t have expected to happen, or thought could happen. So it’s totally doable.

 

Dr Claire Charters (Ngāti Whakaue, Tūwharetoa, Ngā Puhi, Tainui) is Professor of Law at the University of Auckland, specialising in Indigenous Peoples’ rights and constitutional law. She served as Rongomau Taketake at Te Kahui Tika Tangata / NZ Human Rights Commission, and chaired the He Puapua working group.

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