Dominic O’Sullivan
In 1840 the British Crown and the Chiefs of the United Tribes of New Zealand signed a Treaty giving Britain the right to establish government in New Zealand and affirming the Maori right to authority over their own affairs and resources. The Treaty of Waitangi also gave Maori the rights and privileges of British subjects, a concept that has evolved into a contested modern day citizenship.
Successive New Zealand governments interpreted the Treaty as a cession of sovereignty to the British Crown. In 1877 the Supreme Court described it as a ‘simple nullity’; an agreement affording Maori no legal effect. However, for Maori it was a solemn and enduring commitment presented to them by English missionaries in 1840 in the language of Biblical covenant. By 1975, persistent Maori advocacy saw the establishment of a public Tribunal to investigate alleged breaches of the Treaty by the Crown. In 1985 the Waitangi Tribunal’s investigative powers were extended, and it had become commonplace to give the Treaty’s principles legislative effect across a wide range of policy domains.
However, the doctrine of the sovereignty of the ‘Crown in Parliament’ remained one of Maori democratic exclusion. For all legal and political purposes sovereignty had been ceded. Though subject to judicial challenge and interpretation, the Treaty in contemporary times means what Parliament wants it to mean. So, it was significant, in 2014, for the Tribunal to find that in agreeing to the Treaty the Ngapuhi iwi [tribe] did not cede their sovereignty to the British Crown. The Crown’s right to establish government was conditional.
The Minister for Treaty of Waitangi Negotiations minimised the finding’s significance:
“There is no question that the Crown has sovereignty in New Zealand. This report doesn’t change that fact… The tribunal doesn’t reach any conclusion regarding the sovereignty the Crown exercises in New Zealand. Nor does it address the other events considered part of the Crown’s acquisition of sovereignty or how the treaty relationship should operate today.”
The finding does not bind the Crown, but it does have the capacity for moral and political influence. It may also influence the evolution of Treaty law. Its significance is also in the further questions that the finding raises. What, for example, does it mean if sovereignty was not ceded; what exactly is the political authority that Maori retain and what does it mean for the operation of the state and its institutions? The finding also gave context to the United Nations’ Declaration on the Rights of Indigenous Peoples and its provision that: “Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the state” (Article 5).
Indigenous sovereignty is most commonly understood as the maintenance and development of those distinct institutions. These are important, but democratic inclusivity also requires attention to what it means ‘to participate fully’ in the affairs of the state as an indigenous person. The Waitangi Tribunal finding invites consideration of what implications this might have for the meaning and practice of public sovereignty. If sovereignty was not ceded, what does this mean for the Maori citizen of the liberal state whose political capacities depend on being able to construct non-colonial public relationships.
The Tribunal left open these questions of what sovereignty looks like, the purposes it serves and what it might mean for a contemporary politics of inclusion? How might sovereignty confront democratic exclusion as the modern state’s principal colonial strategy? Can Maori political expectations and aspirations be satisfied if sovereignty is not an all-powerful colonial authority exercised over and above Maori people and their political institutions, but the repository of a collective public authority that Maori share in distinctive ways with other citizens? This is a kind of political authority that Roger Maaka and Augie Fleras call ‘belonging together differently’.
‘Belonging together differently’ is a differentiated liberal citizenship where Maori political authority is retained over their own affairs. At the same time, they have a political space as culturally distinctive liberal citizens of the state. Sovereignty is disbursed. It is the property of the people rather than the ‘Crown in Parliament’. From this perspective, Maori politics vis-a-vis the state need not be reduced to a ‘them’ and ‘us’ binary marked by confrontation as the state encroaches over Maori spheres of influence.
Maori thinking about the authority that the Treaty affirms over their own affairs is clear and consistent. It involves land and other resource rights. It involves the capacity to use and protect these according to long established custom and for purposes that are consistent with cultural values and self-defined economic and social aspirations.
However, the right to language is a more complex example. Just as the state once used schooling, as an instrument of coercion and assimilation to undermine the Maori language, there is a contemporary expectation that schooling is structured to allow Maori ‘to achieve as Maori’. Public schools are expected to support cultural aspirations. They teach the Maori language widely and often successfully. At the same time, overall Maori achievement falls well behind that of other citizens. There is a claim before the Waitangi Tribunal that the Crown is breaching the Treaty by obstructing Maori efforts to exercise greater control over their education through independent schools. The claim is a question of sovereignty’s distribution. It is a contest for inclusion in public decision-making over educational administration, on the one hand, and, on the other, a contest for distinctive authority and capacity to create institutions of self-determination outside the state.
The school is potentially a site of significant non-colonial transformation. Who controls it and why is democratically important. Schooling provides an important case study in how democracy works to include or exclude. It is a case study on the nature of relationships among democracy, sovereignty, citizenship and self-determination. Is, for example, sovereignty over something as culturally significant as language the exclusive domain of the state or is it a political authority that should be dispersed among citizens to protect the inherent right to self-determination? In this example, shared sovereignty is not an affront to equal and universal citizenship. It is not a claim to political advantage over others, but a claim to substantive inclusion as normative politics. A claim to the democratic ideal that: ‘Your freedom consists in the fact that you have a guaranteed voice in the sovereign, that you can be heard, and that you have some part in making the decision’. This allows what Nancy Fraser calls ‘participatory parity’ in public policy making.
Participatory parity provides an important political contrast with Jeremy Waldron’s argument that universal liberal citizenship means that ‘the general duty of a government to do justice to all people living in a territory is [not] trumped by any special duty to those of the inhabitants who can claim indigenous descent’. Confining expectations to what citizens are owed in justice by the state positions people as beneficiaries of a public benevolence. Instead, participatory parity allows the self-determining indigenous citizen to make the decision about what is owed to oneself. What indigenous peoples think that they owe to themselves can become the focus of political activity.
The assumption that Maori people belong to the national sovereign as Maori re-frames the ways that people may think about political opportunities and constraints. It raises the level of reasonable political expectations. People, rather than the state, become the object of discussions about sovereignty. Presumptions about relationships between public sovereignty and independent self-determination are freed of the constraints that the Supreme Court of Canada, by way of contrast, imposes in its view that public policy ought to recognise ‘the pre-existence of Aboriginal societies with the sovereignty of the Crown’. It is better to reconcile the people’s collective sovereignty with a liberal democratic indigenous citizenship.
For Maori, the state is an institution of extraordinary coercive power. That power is certainly mediated by institutions such as guaranteed Maori seats in parliament. However, the state is not fixed in its form, functions or in the ways that it distributes power. Inclusive democratic arrangements that eliminate the ‘them’ and ‘us’ binary may diminish the state’s coercive capacity and give sovereignty itself a different public character.
Shared sovereignty, expressed through differentiated citizenship and participatory parity, provides far-reaching opportunities for thinking about just political relationships and democratic inclusivity. For example, the Tuhoe tribe’s Decolonising Tuhoe strategy includes taking responsibility from the state for reducing its people’s level of dependence on the state. In 2014, 29% of the Tuhoe population received public welfare benefits which was an obstacle to the tribal aspiration to ‘become independent of the Government, generate its own revenue and become self-sustaining’. The aspiration is a claim to responsibility for one aspect of the sovereign authority of the state. The purpose is to raise the political capacity to address a policy problem by being at the democratic centre of the development of solutions. A government report on the proposal observed that Tuhoe ‘could get better results… because of the knowledge, proximity and influence with the potential beneficiaries’and appears to support the Tuhoe view that ‘we can design a system where there is a transition from benefits to wages and salaries’.
Sovereignty is the embodiment of real political power. People should not feel perpetually excluded from it and there are ways in which public authority can be distributed more fairly and to recognise Maori self-determination.
Dominic O’Sullivan is Associate Professor of political science at Charles Sturt University, Australia. He has over 50 publications including six books, most recently Indigenous health: power, politics and citizenship (Melbourne: Australian Scholarly Publishing, 2015) and Indigeneity: a politics of potential – Australia, Fiji and New Zealand (Bristol: Policy Press, 2017). @indigpolitics