H6 KOl"erO Koanga (Spring). Volume 2. Number I , 1996

MAORI REPRESENTATION IN PARLIAMENTAND TINO RANGATIRATANGA

Tina R Makcrcti Dahlbere

Whakarapopoto KoreroKo tenei tuhituhi ka ata tatari i te papa tu a te Maori kiroto i te Whare Parcmata, katahi ka titiro mehemea itutuki and nga wawata me nga tumanako i huaina kite tino rangatira. Whaia ka tirohia hoki c tenei tuhituhinga momo whiu i kakati mai i tc Maori, tac atu ki ngawhakaupoko o te ture kaore i am ki te Maori ki teTiriti o Waitangi ranei. Ka whakawhitia etahi atumomo upoko korero i hangaia hei katoitoi i te Maori.Ka tirohia te whakatangata mai o aua kaupapa. Te tumarika o te momo whakarauika Maori and tetahikaupapa ka wetewetea. Koia ra tonu ko te ngau atu ite MMP potitanga me te ata tatari i te whakaupoko ite hiahia o te Maori kia toi tu me etahi atu kokiritangakia tau ki te matamata o te tino rangatiratanga.

AbstractThis paper will examine the history of Maorirepresentation in Parliament and attempt to assess howit may have affected Maori aspirations for tinorangatiratanga. The paper will investigate anysignificant barriers to the effective representation ofMaori in Parliament, in particular the lack of any realconstitution or constitutional position regarding Maorior the Treaty of Waitangi. Other methods Maori useto influence government policy making and legislationwill be contrasted against Parliamentaryrepresentation. The possibility of a Maori Assembly,Parliament or House will also be examined. Finally,the possibilities presented by the Mixed MemberProportional (MMP) electoral system will be discussedand a final analysis will attempt to place MaoriParliamentary representation on a continuum withother forms of political action Maori may use to attaintino rangatiratanga.

IntroductionTino rangatiratanga has been translated to mean self-determination, autonomy, full authori ty, chieflyauthority, authority of the people, sovereignty, andchiefly sovereignty by different people at differentt imes ' . Another important statement seesrangatiratanga, sovereignty and mana as inseparable

terms2. Through the Treaty of Waitangi Maori retainedrangatiratanga and never ceded mana so it may beargued that their claim to sovereignty was maintained.

In an article that examines in detail the variousmeanings of tino rangatiratanga, Durie isolates twoaspects that are particularly relevant to contemporaryMaori society: mana whenua and mana tangata;

"the first acknowledges the rights ofhapu and iwi inrespect of their own tribal affairs while the secondrecognises the right of Maori people generally toorganise according to a range of social and politicalgroupings." (Durie 1995:44)

Durie points out that there is no single definitionof tino rangatiratanga although facets and principlesof the concept can be examined. Self determinationappears to be the most useful term to equate with tinorangatiratanga because it

"captures a sense of Maori ownership and activecontrol over the future and is less dependent on thenarrow constructs of colonial assumptions." (Durie1995:46)

As Walker discusses in a paper on Maorisovereignty, the term tino rangatiratanga has evolvedand been imbued wi th more m e a n i n g through"reconstruction" by Maori activists and tribal leaders(Walker 1996:81). This evolution may have beennecessary due to the fact that the

"concept of tino rangatiratanga is a colonial constructinserted into the Treaty of Waitangi to manipulate thechiefs into signing..."(Walker 1996:84)

Reclamation and redefinition of tino rangatiratangaby Maori is an attempt to decolonise the term, an actwhich in itself exemplifies the concept of tinorangatiratanga.

For many Pakcha and also the government,acknowledgement that tino rangatiratanga is the Maoriequivalent to English sovereignty would pose aproblem in that it would throw into question thelegitimacy of the Crown's claim to sovereignty overNew Zealand through the Treaty of Waitangi. Whilethe first Article in the English version of the Treaty

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states that the chiefs:

"cede to Her Majesty the Queen of England, absolutelyand without reservation, all the rights and powers ofsovereignty"

The second Article in the Maori version guaranteedthe chiefs: "te t ino rangatiratanga o ratou wenua, oratou kainga me o ratou taonga katoa", or: "theabsolute chieftainship [sovereignty] of their lands,homes, and all their treasured possessions." (Walker1996:75-76). Most chiefs signed the Maori version ofthe Treaty. However, the governments of New Zealandhave generally relied on the English version to just ifytheir position whenever debate regarding Treaty issueshas occurred.

Defining tino rangatiratanga as sovereignty isproblematic for a range of reasons. It is unacceptableto the government because they retain the

"view that sovereignty is an indivisible attribute ofthe sovereign vested in parliament. "(Durie 1995:46).

In addition the term is loaded with colonialassumptions and "its significance in a global societyis tending to diminish." (ibid). The recent adoption ofsovereignty as the meaning of tino rangatiratanga byMaori activists, has had a double-sided effect on NewZealand society. Cabinet ministers (including JimBolger and Doug Graham) have refused to debate theissue of sovereignty. This leaves Maori without groundto negotiate for tino rangatiratanga (unless they moveaway from the narrow terminology of sovereignty).On the other hand, Pakeha New Zealanders have,perhaps for the first time, been confronted by anintense questioning of the State's right to do what itdoes. Some welcome this challenge (Chris Trotter, JaneKelsey3), while for others it is a bewildering and/oroffensive upset to the status quo. Either way, the timewhen New Zealanders could take for granted thelegitimacy and stability of the current constitutionalorder has passed.

The contradictions inherent in the Treaty pervademany aspects of Maori-government interaction. Thisis fu r the r exacerbated by the lack of any realconstitutional position by the government to the Treatyof Waitangi or to Maori. One aspect of Maoriinvolvement with the government since 1867 has beenthe representation of Maori in Parliament by fourMaori scats. Since that time, Maori candidates havebeen elected by Maori constituencies to representMaori in Parliament, with limited success. At timessignificant victories have been won for Maori causes.

At other times the impotency of Maori MPs has beenevident, in a system which depends on majoritarianismand where the overwhelming majority are Pakeha.Throughout the history of the Maori Parliamentaryseats, debate about increasing or abolishing the seatshas been on-going. This year, with the first MMPelection, the number of Maori seats will increase byone. Sometimes the seats are touted as an example ofNew Zealand's success in race relations (Sorrenson1986:6-36), but is this display justified? How far doesthe separate representation of Maori in Parliament gotowards fulfilling the tenets of the Treaty and tinorangatiratanga?

Crumbs from the Pakeha Table4

The History of Maori Representation inParliamentThe New Zealand Constitution Act 1852, provided fora New Zealand government and gave the franchise toall men over the age of 21 who fulfilled certainproperty requirements. Although Maori men were notspecifically excluded from the franchise, theircommunal ly held tenure of unregistered landseffect ively meant they had no i n p u t into thegovernance of the coun t ry . The 1867 MaoriRepresentation Act allowed for Maori representationin Parliament through four separately elected Maoriseats. All Maori men were allowed to vote for a seat(depending on their district of residence) and as moreland became individualised and registered, some Maoricould also vote for European seats. The Maori seatswere initially implemented as a temporary measureuntil Maori land was individualised to the extent thatMaori could participate in the European system. Forvarious reasons, the life of the Maori seats wasextended indefinitely and, in 1893, the universalfanchise was granted to men and women, regardlessof land holdings. The reasons why the Maori seatswere first implemented, and were then kept despitethe government's original intentions, reveal theattitudes that pervaded government thinking. It alsoshows why this form of representation has hadextremely limited capacity in fu l f i l l i ng Maoriaspirations for tino rangatiratanga.

The implementation of Maori seats involved nohigh intentions or moral principles. It was simply theeasiest way to placate the different factions of societywho were increasingly disturbed by events in NewZealand after the signing of the Treaty of Waitangi.As Sorrenson states:

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"It was a useful way of rewarding Maori loyalists andplacating Maori rebels, while also assuring critics inBritain that the colonists \\ould look after Maoriinterests." (Sorrenson 1986:B-20)

Attention was diverted away from other methodsof stemming the flow of Maori land to Europeansettlers. Maori were encouraged to believe thisconcession would enable them to make some impactin a government which was allowing continual Treatybreaches.

It quickly became evident that the Maori seats inParliament would provide Maori with less of a voicethan they might have hoped. Sorrenson succinctlysums up the situation:

"Unable to speak English and therefore unable tofollow the normal cut and thrust of Parliamentarydebates, and very often ignored or ridiculed when theydid speak on important Maori matters, the Maorimembers were little more than a token representationthat enabled the Pakeha members to salve theirconsciences while also relieving the Maori of muchof their remaining land and autonomy." (Sorrenson1986:B-26)

Interpreters could be used when Maori memberswanted to speak, but they were still at a considerabledisadvantage. They were invariably out-voted whenthey opposed issues of importance to Maori, such asthe Native Land Acts which facilitated settler purchaseof Maori land. In rare instances they held the balanceof power when European members were evenlydivided. This gave them some power to negotiate formore advantageous positions, as when two Maorimembers were appointed to the Executive Council inreturn for their votes. (Sorrenson 1986:B-23)

By 1876 the Maori Representation Act wasextended indefini tely. European members weremotivated to extend the Act fearing that Maori votersmight jeopardise the safety of some European seats ifthey were included on the European roll. Despite theineffectual nature of the Maori presence in Parliament,many Maori soon came to see the Maori seats as vitaland their only guarantee of any representation at all.Other large groups of Maori chose to remain outsidethe European system. They chose instead to alignthemselves with Kingitanga or Kotahitanga, in thehope that their interests would be better protected thatway. It was not until the 1900s that Maori began tomake a greater impact in Parliament.

James Carroll was the first Maori MP to be a

member of Cabinet and Minister for Native Affairs.He implemented the Maori Councils Act of 1900. Itprovided for tribal councils and village committees,that had the authority to impose sanitation, controlliquor, and to promote health reform and education.This Act also curtailed support for

"a larger form of autonomy, then being powerfullyadvocated by the Kotahitanga or Maori Parliamentmovement." (Sorrenson 1986:29-30).

In the same year, Carroll tried to pass another Actthat would have halted the alienation of Maori land,but overwhelming opposition from the Pakeha pressand Parliamentarians meant he had to alter the Act togive Europeans more control.

These two Acts s ign i fy a theme tha t recursthroughout the history of Maori Parliamentaryrepresentation. Maori MPs arc subject to a range ofinfluences and limits on their capacity to formulate'Maori' policy. Carroll's Maori Councils Act wascreated to give Maori some autonomy in their domesticaffairs, yet it curtailed in part the Kotahitangamovement. Some would suggest that the Kotahitangamay have been able to provide Maori with moreautonomy. Were Carroll's motivations for such a movebased on personal beliefs that did not supportKotahitanga, the need to fit in with governmental andparty limitations, or an attempt to do what he could -knowing what would be acceptable? The changes hewas forced to make to his Maori Lands AdministrationAct would suggest that the latter motivations wouldshape much of Maori policy. There is an inherentcontradiction for Maori in Parliament that can be tracedfrom the beginnings of their presence there. As Maorielected by Maori, they are expected to represent Maorineeds and ambitions. However, to maintain anysupport and influence in Parliament they must concedeto the majority's conventions and opinions. As themajority in this instance is Pakeha, the capacity forpro-Maori legislation is severely limited. Further tothis, it must be noted that Maori, like Pakeha, exhibita wide range of opinions and ideals. It would beimpossible for one Maori in Parliament, or even four,to represent the diversity of Maori opinion. As the firstMaori MP to make a significant impact in government,Carroll's achievements must be appreciated, but theyalso demonstrated for the first time the real limits tothe effectiveness of this form of representation.

In the early years of the 1900s, the members of the'Young Maori Party', mentored by Carroll, entered

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Parliament. Apirana Ngata, Maui Pomare and for ashort term, Peter Buck were educated, articulateMembers of Parliament who were able to contributein significant ways to Maori policy and legislation.Each member had a different approach to this task,however. Pomare was "an outspoken assimilationist,and wanted Maori to become Pakcha as rapidly aspossible" (Sorrcnson 1986:6-31); Ngata was loyal tothe Liberals, but able to influence policy even whenhis party was in opposition; Buck was more outspoken,and probably due to his interest in work outside ofpolitics, could be less diplomatic and often criticisedgovernment land policies,

"Buck was also well aware of what he called theabsolute impotency of Maori members" (Sorrenson1986:8-31).

Pomare's assimilationist views gave him rapidentry to Cabinet and several important portfolios(Sorrenson 1986:B-32). There was some conflictbetween Pomare and his Maori colleagues particularlyover land policy, demonstrating again the diversity ofMaori op in ion about which approach to Maoridevelopment would produce the best results. Later inhis career Pomare did work with Ngata, persuadingthe government to investigate land grievances, andwinning some compensation for his people.

The most well-known Maori MP of the time, Ngata.spent thirty-eight years in Parliament and is noted formany achievements. He was able to implement manyschemes for Maori welfare and land development,although a feature of his 1909 Native Land Bill wasaimed at satisfying European purchasers as well asMaori owners. Ngata was at different times appointedas a Member of the Executive Council Representingthe Native Race and Native Minister. Even when hewas not part of government, his advice was valuedand he continued to cont r ibute to Maori policy(Sorrenson 1986:6-34). As Native Minister, Ngataincreased expendi ture and sped up Maori landdevelopment. This pro-active posi t ion attractedattention to his activities and eventually provoked aninquiry which found that he was not allowed to usestate funds for the interests of his own tribe. The event:

"revealed more sharply than anything before orafterwards the inability of the Pakeha establishment -Parliament, the bureaucracy, the judiciary, and thepress - to bend procedures to allow a Maori Ministerto do things in a Maori way. "(Sorrenson 1986:6-36)

The Ratana movement emerged in the 1930's asthe dominant force in Maori politics. Founded in 1918by T.W. Ratana, the movement soon became focusedon political and social issues which he believed hecould inf luence through the four Maori seats inParliament. After aligning with the Labour PartyRatana achieved their ambition of winning all fourseats in 1943. The Ratana-Labour alliance proved tobe an enduring one and loyalty by Maori to the LabourParty has remained strong up to the current election(1996). Despite holding the balance of seats in the 1943Parliament, the Ratana MPs made little impact andwere to remain in ineffectual positions unt i l the 1972government led by Norman Kirk. Throughout this timeRatana MPs kept up a continual call for the ratificationof the Treaty of Waitangi and an increase in Maoriscats, but:

"there was no effective way those Maori Labourmembers could demand of their Government theaffirmative action that was needed to lift their peoplein the social and economic scale to the level of thePakeha population, without causing a Pakeha backlashat the polls. Nor was anything to be gained by crossingthe floor and bringing down the Labour Governmentsince National offered a worse alternative." (Sorrenson1986:6-46)

Once again Maori aspirations were held hostage toPakeha control.

The Kirk government allowed its Maori membersfull participation in Cabinet. As Minister of MaoriAffairs, Matiu Rata ushered in the 1975 Treaty ofWaitangi Act. But Labour's time in government wasbrief and National won the 1975 election withoutwinning any of the Maori seats. Despite their lack ofpopularity in Maori constituencies, by 1979 Maoricandidates for National held 3 general seats. Maoriwere by now able to choose whether to vote on theMaori or General roll. The existence of Maori MPselected from general constituencies could be seen asproof that the need for separate Maori seats was nowredundant. However, General Maori Members couldnot be expected to represent solely Maori interests andtended to be more conservative to attract their Pakehavoters. The Maori seats continued to be safelyinstitutionalised because there was:

"no sufficient political advantage in abolishing thescats in the face of what was bound to be considerableMaori opposition." (Sorrenson 1986:B-58)

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The Decade of Maori Development, beginning in1984, initiated many positive changes in legislationfor Maori. These changes in part emanated from MaoriMPs who were able to exercise significant influenceon the Labour Government of the late 1980s. Anincreased prominence of tribal groups, the KohangaReo movement, the Waitangi Tribunal and pan-tribalorganisations such as the National Maori Congress andNew Zealand Maori Council also played a part. MaoriMPs seemed to be working to open doors and clearpaths through which non-governmental Maoriagencies could begin the long process of negotiatingfor the return of resources and self-determination.

As Minister of Maori Affairs, Koro Wetere initiateda change in the phi losophy that had pervadedgovernment policy towards Maori since it was firstformulated. At his 1984 Maori Economic Summit -the Hui Taumata - he advocated a positive approachto Maori Development which included rather thanridiculed customary iwi structures. For the first timetribes were seen as facilitating rather than stuntingsocial and economic development. By 1988 thisapproach had become government policy, fitting neatlywithin Labour's aims for devolution. Although notalways successful, the policy required tribes to re-organise and re-assess themselves, (Durie, 1996:4)leading to a re-assertion of tribal identity and authority.

Coupled with the extension of the WaitangiTribunal's powers to consider claims back to 1840,the re turn to t r ibal ism sparked a new era ofempowerment for Maori. This came just in time todeal with the onslaught of new Labour policies aimedat selling off State-owned assets. The battle to protectMaori interests in State assets was partly relieved bythe Court of Appeal in the New Zealand Maori Case.Amendments were made to the Sta te-OwnedEnterprises Act to protect Maori interests under Treatyof Waitangi claim (Renwick, 1991:216). But, asevidenced by the dramatic decline in Crown ownershipof lands under claim by Tainui, retention of assets untilclaims were resolved was not guaranteed (Taitoko,1996:3-4).

The 1990's, with the return to a National Partygovernment, signalled a new urgency to resolve Treatyof Waitangi claims. Direct negotiation with Maori bythe government became the most popular form ofresolution due to time and cost effectiveness. This didnot mean all Maori were satisfied with the process.The first directly negotiated settlement between Maoriand the gove rnmen t , the Sealords Agreement,

prompted a split in Maori opinion that had a significantimpac t on the N a t i o n a l Maori Congress byundermining unity. Part of the disagreement centredaround the issue of mandate. As noted by Duric(1996:13), the Runanga Iwi Act provided for amandating process which would have circumventedmany of the difficulties associated with Sealords andother Maori-Crown negotiations. However the Act hadbeen repealed by Winston Peters when he was Ministerof Maori Affairs.

In 1995, Crown Proposals for the Settlement ofTreaty of Waitangi Claims, known as the fiscalenvelope, were released. The proposals made availablea capped sum for the settlement of all claims, andexcluded the possibil i ty of negotiating for naturalresources and the conservation estate. Maori wereindignant that they had not been consulted prior to therelease of the proposals, and were insulted by the lackof real consultation, despite the so-called consultationhui. Iwi united in condemnation of the proposals withprotests ranging from dignified korero to militantposturing and occupations. Maori MPs did not occupyany significant places in Cabinet and seemed to haveas little influence over the proposals as Te Puni Kokiri,the supposed Maori policy advisors to the government.The lack of Maori influence in the governing of Maoriwas h igh l i gh t ed by these events. The issue ofsovereignty or tino rangatiratanga became the centralfocus of many protests which condemned the fiscalenvelope as endemic of a nco-colonial system.

Despite the protests, the Crown proposals havebecome government pol icy anyway. To datesettlements have been made with Tainui, Whakatoheaand Ngai Tahu. Two weeks prior to the election thereseems to have been a rush to sign agreements beforethe unpredictable, new MMP environment takes over.The sovereignty debate has also been diverted for thetime being as all New Zealanders grapple with changein the electoral system.

The portrait presented here shows that, at worst,Maori MPs have at times been completely ineffectual.At best they have managed to create gaps throughwhich the rest of Maori society may access crumbs ofresources and power. This view is not as cynical as itappears. A more negative stance would assert that atworst Maori MPs have put their non-governmentalpeers at a considerable disadvantage. The demise ofKotahitanga has been attributed to the success of theYoung Maori Party in Parliament (Sorrenson 1986:B-38). In a similar vein Sealords challenged the notion

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of Kotahitanga for Maori Congress, a conflict that mayhave been prevented had Peters not repealed theRunanga Iwi Act (Durie, 1996:13). Maori MPs havebeen castigated as 'tame parrots' for the government(Walker, 1994:187). Their presence has allowedPakeha to claim success in race relations (Sorrenson1986:6-36), whether it was justified or not.

Because their mere presence in Parliament spellssupport for a system many Maori see as beinginherently colonist, Maori MPs cannot commandsupport from all factions of Maori society. In anopinion poll in 'Mana magazine, 44% of unenrollcdMaori said they weren't enrolled because they couldn'tsec the point - it wouldn't make any difference becausethe Pakeha would still hold control (Mana, 1994:81).For these Maori and many who do enrol, problemsexist at a deeper constitutional level, and Maori inParliament can only do so much (or so little) to changethat. The Royal Commission on the Electoral Systemof 1986 supported this view, although it did not suggestsolutions in the form of const i tut ional change.Regarding Maori MP's relationship to the majority ofParliament, the Commission concluded;

"In the past they had to depend on its mercy. Todaythey depend on its goodwill. Thus separaterepresentation has reinforced the political dependencyof the Maori people and their exposure to non-Maoricontrol over their destiny and future." (1986:91)

The value of the Maori presence in Parliamentshould not be underestimated however. Chief JudgeDurie (1991:159) has pointed out that without the

continual Treaty advocacy of the Maori MPs datingfrom last century, neither the Waitangi Tribunal norits increased powers would have been possible.Likewise, important pieces of legislation like the TeTure Whenua Maori Act would never have beenlegislated. Other writers agree5 that despite the elementof tokenism, the four Maori seats are the best thatMaori have been able to extract from the New ZealandGovernment and at least are some form of guaranteedrepresentation.

"The Maori scats have come to be regarded by manyMaori as the principal expression of their constitutionalposition in New Zealand. They have been seen byMaori as an exercise, be it a limited one, of their tinorangatiratanga guaranteed to them under the Treatyof Waitangi." (Waitangi Tribunal, 1994:11)

International comparisons give some credit to theNew Zealand claim to good race relations. AboriginalCanadians for example did not gain the franchise untilthe 1950s, while Aboriginal Australians had to waituntil the 1970s. The credit however may be moreapparent than real.

What Constitution? - ConstitutionalArrangements in New Zealand

"Parliament claims an absolute sovereignty over us,Maori and Pakeha alike, unlimited by any writtenconstitution" (Brookfield, 1994:462)

The previous section reveals a lack in terms ofrepresentation of Maori in Parliament. Hopes that the

GOVERNORGENERAL

SOVEREIGNsymbolic PRIVY

COUNCIL

EXECUTIVECOUNCIL

Cabinet •§•Governor General

PARLIAMENTmakes laws

COURTSinterprets laws

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influx of more Maori MPs to Parliament through MMPwill facilitate better representation are examined laterin this essay. Examinat ion of New Zealand'sconstitutional order reveals that the inability of MaoriMPs to represent Maori interests including t inorangatiratanga can be attributed to a lack at a muchdeeper level. New Zealand's consti tutionalarrangements are too often implicit rather than explicit.Decisions are made and policies developed withoutthe foundations and structure of a constitution thatwould clearly define the limits to cabinet's powers.Both Maori and Pakeha New Zcalanders encounterconfusion and dissatisfaction in a political environmentthat does not affirm or reflect a position for them -other than as silent voters. Maori invariably turn tothe Treaty of Waitangi to assert some sort ofmeaningful power-sharing relat ionship with theCrown. But while the government does have a TreatySettlement policy it does not have a Treaty policy.Maori fear what may become of the Treaty in anenvironment that provides for its 'settlement' in theabsence of an explicit government relationship to theTreaty. When settlements have been made, whatposition will the Treaty, and therefore Maori, be in?

The change of electoral system to MMP and thepopularity of political parties like NZ First reflectsthe desire of New Zealanders to assert more controlon the exercise of governance in New Zealand. Butstill the constitution remains unresolved. As weapproach Republicanism, the need for a clearconstitutional position, part icularly for Maori,becomes more urgent.

The above diagram sets out New Zealand'sconstitutional arrangements for government. Themodel contains many weaknesses:• the relationship between components is vague,• the position of Maori is not explicit,• the Executive Council has excessive powers,• there is no clear separation of Executive and

Parliament,• it relies on convention rather than a written

constitution,• the Privy Council may be abolished without an

appropriate replacement.Authority for our current constitutional

arrangements comes from the 1986 Constitution Act.The closest New Zealand came to entrenchingconstitutional legislation was the 1990 Bill of RightsAct. Controversy from Maori and Pakeha over whetherand how the Treaty of Waitangi could be made part ofthe Act was one of the reasons it was eventually

watered down and passed as an ordinary law.Entrenchment of the Bill of Rights Act including theTreaty would have made all other laws subject to it.

The lack of any constitutional position regardingMaori or the Treaty of Waitangi leaves Maori MPsand aspirations for tino rangatiratanga in a difficultposition. Some Maori oppose the entrenchment of theTreaty of Waitangi as they believe it stands apart andabove the fickle whims of governmental lawmakers.There exists a fear that making the Treaty law wi l lallow the possibility for the Treaty to be repealed ordistorted. Others believe we have nothing to lose andmuch to gain by entrenching the Treaty as law6.Certainly it would give the courts more power toimpose justice on situations that contravene Treatyrights. However Ward (1991) and Durie (ibid) assertthat the Treaty was not written as law and was neverintended to become law. They stress the importanceof the spirit of the Treaty, its principles, its capacityfor freeing discourse and the general ideas it wasinterpreted to convey at the time of writing and signing.As the Waitangi Tribunal states:

"The spirit of the Treaty transcends the sum total ofits component written words and puts narrow or literalinterpretations out of place." (Durie 1991:164)

Entrenchment in law may lend the Treaty to narrowor literal interpretations. A solution presents itself inthe form of a set of Treaty principles that legislationsuch as the Resource Management Act 1991 haveincluded reference to. But Durie also warns againstoveruse of principles in the place of the actual termsof the Treaty. (1991:166)

New Zealand's defacto constitutional position hasbeen examined closely by Brookfield. He asserts thatthe Crown assumed sovereignty in a revolutionaryseizure of Aotearoa and has continued to assert control,often in 'gross derogation' of Treaty rights. Thelegitimacy of New Zealand's government, Brookfieldasserts, is not based on the Treaty but on the successand durability of the Crown's take-over. Pakeha mightbe unwilling to accept this theory because it

"casts an embarrassing aura of illegality over theorigins of the present constitutional order and legalsystem." While Maori are unwill ing to accept itbecause "the mere assertion of authority or the passageof time can neither justify an imposed power, norrender meaningless the rights of those who have beensubjected." (Brookfield 1994:464)

At a Maori Congress hui in Ngaruawahia in August

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1996, similar sentiments were expressed. Severalcomments during discussions called into question the' i l legal government' of New Zealand. ProspectiveMaori MPs were gathered at the meeting to answerquestions but were faced with an underlying hostilityabout the l eg i t imacy of the gove rnmen t . Theopportunity presented was to take advantage of thenew MMP environment, but participants expresseddisdain for a system that was still Pakeha dominated.Finally a suggestion for a parallel Maori Parliamentwas raised and was met with more positive interest.With the move away from the Privy Council and theBritish Sovereign, Maori recognise the urgent need toes tab l i sh ourse lves as a v i s i b l e en t i ty in theconstitutional arrangements of Aotearoa-New Zealand.Mere representation (whether token or proportional)in a Parl iament modelled on the eu roccn t r i cWestminster system will not be enough to abate Maoricalls for tino rangatiratanga and recognition of theTreaty. The potential for a truly indigenous governmentof Aotearoa-New Zealand, formulated in partnershipand guided by the Treaty of Waitangi, must be realisedsoon if it is to be a possibility at all.

Tino Rangatiratanga - Doing Things OurWayThere is a continuum of Maori opinion about whatform of government for Maori would be desirable. Atone end of the spectrum is support for the currentsystem, with increased Maori participation. This wouldinclude an increase in the number of Maori Judges,MPs, and CEOs in government departments. Thesecond option sees the creation of parallel forms ofMaori government, a Maori 'body politic' that worksin conjunction with the current government. Recentlya form of Maori representation that exists in betweenthese two forms of government has found support inthe Prime Minister. He has

"seized upon the idea of convening a democraticallyelected, pan-tribal, Maori Assembly to act as advisorto the government on sovereignty issues." (Trotter1995:28).

Bolger's vision of a Maori Assembly undoubtedly doesnot include any real constitutional power-sharing7,a l t hough it w o u l d give Maori some leeway toformulate policy for ourselves.

The third option for governance supported by someMaori is a Maori Nation State. This would assert

sovereignty over all or parts of New Zealand, wouldinclude a series of tribal nations and would govern ina uniquely Maori way. Proponents of this system havenot defined this 'Maori way' but it is based on acomplete rejection of the authority of the currentgovernment. The parallel government model isrejected also because it would mean Maori using andsupporting Western models. Brookfield suggests thatthe only way it would be possible for two separatenation states, one Maori and one Pakeha, to occur,would be through revolutionary overthrow of thecurrent constitutional order.

"of course ideologically justified in the eyes of thosewho bring it about; and then, if it works, madeacceptable - legitimate - for everyone not sharing theirideology, by its effectiveness and durability."(Brookfield, 1994:465)

This particular model of a Maori Nation State doesnot account for our history of colonisation, which hasimpacted on the development of Maori society to suchan extent that doubt is cast over whether such a modelwould be effective or durable. Even when Maori winlimited self-governance over vast resources throughTreaty settlements - as in the Tainui settlement -kaumatua express concern about whether the iwi haveretained or developed the necessary skills to gainindependence (Mahuta, 1995).

Walker describes three models of Maorigovernment proposed at one of the Hirangi hui heldby Sir Hepi Tc Heuheu. They include a range similarto that above but give more explicit details on theworkings of a parallel form of government.

"The tikanga rua model is predicated on the balancedprinciples of kawanatanga and tino rangatiratanga inthe first and second clauses of the Treaty of Waitangi.The model proposes a Maori assembly to producelegislation based on Maori tikanga, and a Pakehaassembly to make law based on Pakeha tikanga. Thelegislation from these two houses then goes forwardto an upper house known as Te Runanganui o te Tiriti,The Grand Treaty Council. This council, comprisedof 21 Pakeha and 11 Maori, would measure laws fromthe lower houses for their compatibility with the treatybefore giving its approval." (Walker 1996:89)

This model reflects the Treaty of Waitangi and givesMaori a position of true partnership alongside Pakehain the governance of the country. However, at theHirangi hui, unanimous support was given to the Mana

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Motuhake model tried by the Maori King Movementand Paremata Maori last century. This model wouldallow Maori self-government as a nation within anation. The attainability of either model is at presentprecarious, to say the least. Although:

"the concept of a Maori nation is well founded. It isbased on a shared cultural heritage, a physicaldistinctiveness, a history which pre-dates colonisation,aspirations towards self determination and a non-acceptance of the state as the appropriate author ofMaori policy.... The impetus for recognising andpromoting a Maori nation... [stems from]dissatisfaction with existing arrangements throughwhich Maori policy is made, the desire for themaintenance of language and culture, an increasingrealisation that dependence on the government createsvulnerability and a consequent determination to playa more independent and autonomous role at tribal andnational levels." (Durie 1996:14)

Precedents for indigenous parallel structures ofgovernment have developed in Norway and Canada(Durie 1996:15). In both countries the organisationstend to be more advisory than governing bodies,although the Saami group in Norway is referred to asa Parliament. The Assembly of First Nations in Canadais similar to the Maori Assembly idea that has gainedpopularity with the Prime Minister.

When suggestions for a parallel Maori Parliamentwere made at the Maori Congress hui in August 1996,some participants pointed out that the structure wasalready present in the form of Congress. Whether theMaori Congress is the best model for a parallelgovernment structure or not, it is probably the bestforum through which discussion and debate over theissue can be resolved by Maori.

While Maori are not a homogenous group (Durie1996:9), some common meeting place must beestablished on the continuum of opinion describedabove. Only then will Maori be able to approach tauiwiwith a solid plan for equitable government.

MMP - More Maori in Parliament??In the meantime we can continue to increase ourparticipation in the nation-state of New Zealand.Participation in the current form of government docsnot rule out support for alternative forms. As notedpreviously, Maori MPs are important in that they createroom for other Maori groups to make progress. MaoriMPs are not the solution, but are part of the means.

The increase of their numbers in Parliament wi l lprepare Pakeha New Zealand for a more visible Maoripresence in government. Dr Ann Sullivan of WaikatoUniversity recently estimated 15-17 Maori might gainseats in Parliament this election, up to 3 times thecurrent number8. However, apart from the 5 Maoriconstituent members, the MPs will be accountable totheir party and their general voters, rather than beingrepresentative of Maori.

There has been debate about the possibilitiespresented by the MMP Electoral System since the 1986Report of the Royal Commission on the ElectoralSystem. The Commission recommended the abolitionof the separate Maori seats with the change to MMP,believing that MMP would provide an environmentfor much more effective representation of Maoriinterests. Prudent ly , the Maori seats have beenmaintained and given an element of proportionality(numbers of Maori seats depending on numbers ofMaori enrolled on the Maori roll). This continues theguarantee of exclusive Maori representation, while thechange to MMP allows for the development of Maorirepresentation in the general arena. While theCommission acknowledged the imperative that Maorirights and interests were represented at a Parliamentarylevel , it also highl ighted the l imitat ions to thegovernment's ability to cater for Maori, concludingthat:

"the burden of responsibility for the protection of theserights is more appropriately borne by arrangementsoutside the electoral system." (1986:87)

In 1994 an urgent hearing was held by the WaitangiTribunal to ascertain whether the Crown was fulfillingits obligations under the Treaty to protect the right ofMaori to be represented in Parliament and to recognisethe special needs in promoting Maori enrolment andeducation on the option. The government had providedvery limited time (two months) for Maori to exercisetheir choice of electoral roll, which under MMP woulddetermine the amount of Maori seats in Parliament.The report stated:

"The prospect of increased political representationunder MMP is viewed as an overdue and valuableenhancement of their rangatiratanga." (WaitangiTribunal, 1994:11)

The report also found that insufficient funding,planning and time had inhibited promotion of theElectoral Option. It urged the Crown to make further

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provisions, but the government was unwilling to acceptthe Tr ibuna l ' s r e c o m m e n d a t i o n s . Subsequentchallenges to the Court of Appeal and Privy Councilhave not yielded further support. More time andfunding may have encouraged the estimated 50,000(Waitangi Tribunal, 1994:25) uncnrolled Maori toenrol and therefore increase Maori representation inParliament. These events are in keeping with the RoyalCommission on the Electoral System's assertion thatMaori depend on the 'goodwill' of the government(1986:91).

The August Congress hui highlighted some of thedifficult ies for Maori voters hoping for more progressthrough MMP. At least six political parties wererepresented at the hui, each espousing differing views.When asked if they could unite across party lines overissues particularly concerning Maori, candidatesinvariably placed conditions and limits on their abilityto work with members of other parties. Although theobjectives seemed to be the same, ideas about how toachieve those objectives usually varied. The first MMPterm will show whether the increased Maori presencein Parliament can make a significant difference. Maorihave reason to be both hopeful and cynical.

Conclusion

"New Zealand's history is characterised by govern-ment exploitation, disregard and abuse of Maori trust"(Duric, 1996:9)

If the above statement is true then 'government'stands in direct opposition to ' Maori'. How can Maoriever be truly part of an institution that has built itsfoundations on such exploitation? A change in rhetoricand political climate has been evident since the 1980's,but the basic structure and basis of legitimacy of thegovernment has remained unchanged. From thisperspective, the very nature of the government isantithetical to aspirations for tino rangatiratanga. Anyattempts by Maori to engage in this system must bepaired with an indepth understanding of its nature andan acute c r i t i q u e of i t . Whatever the method,decolonisation of the state should be the aim.

Just as the change to MMP has momentarilydiverted attention away from the sovereignty debate,so Maori seats tend to disguise the real issue which isthe need for a constitution that recognises the tenetsof the Treaty of Waitangi as its basis. The legitimacyof the current order will remain in question for someu n t i l cons t i t u t i ona l i ssues are resolved. The

unwillingness of consecutive governments to tacklethis issue is underscored by their unwillingness tomake explicit their relationship with Maori. (If theyignore it it might go away...)

This paper has included a critique of the history ofMaori representation in Parliament which revealsmany weaknesses in the sys tem. Rather thanpositioning Maori as rightful partners in government,tangata whenua or the indigenous inhabitants ofAotearoa/New Zealand who entered into a power-sharing agreement with tauiwi; the current NewZealand Parliament with its token five Maori seatscontinues to institutionalise Maori as 'a minority'9.Being a minority in a majoritarianist democracy meansextremely limited access to power, being constantlyout-voted, having to work through an alien system,and having to depend on the 'goodwill' (at best) ofthe paternal majority. Yet in the-final analysis, theMaori seats have, and will continue to serve a purpose.That they are necessary is starkly obvious whenconsidering the alternative option, which would havemeant no Maori representation at all for most of New-Zealand 's Par l iamentary his tory. Whi l e theachievements of Maori MPs have at times beenmodest, without them our development as Maoricoming to terms with a neo-colonial state may havebeen even more stunted.

Maori have not looked to the Maori seats with blindfaith. While participating in the electoral system(although at a much lower rate than Pakeha), Maorihave continued to work outside the system. KohangaReo, Kura Kaupapa, Maori Congress and the recentdevelopment of groups like Te Ahi Kaa emphasiseMaori innovation and constant resourcefulness inestablishing bases and setting up structures outside ofthe 'mainstream'. These movements find historicalprecedents in Kotahitanga, Kingitanga and spiritual/cultural movements like Ringatu, Ratana and thatespoused by Te Whiti. The groundwork for Maori todevelop a parallel form of government is constantlybeing prepared. Models and ideologies are examined,discussed, tried out, discarded and adopted by differentgroups, exemplifying the dynamism of Maori culture.While Maori are not 'officially' self-governing, weare used to 'looking after' our people and resourcesthrough marae events and committees, runanga andhui.

Maori in Parliament can facilitate the acknowledge-ment and funding of Maori initiatives. Now, with thepossibility of an increased Maori presence in

HC PUKCnga KOrerO Koanga (Spring), Volume 2. Number I . 1996

Parliament, they can begin to prepare the mainstreamfor the change of order that Maori are keen toimplement. The change may be gradual, to include aMaori Assembly as advisors to government. This couldbe a first step on the path to tino rangatiratanga. Thepositions of Maori MP's arc one's of 'middle people'rather than leaders. They are the go-betweens for Maoriand the government. This role is crucial to Maoriaspirations for tino rangatiratanga.

'References in respective order: Durie 199.6:3, Love quoted inDuric 1996:3, Durie 1996:5. Rangihau cited in Durie 1991,Walker 1996.

2 Judge Durie as described by Walker 1996:84.

3 Trotter 1995 and Kelsey in a Massey University GuestLecture 1996.

4 A phrase coined by Sorrenson 1986:8-64.

5 including Sorrenson and the Royal Commission on theElectoral System 1986.

6 Both of these opinions were expressed at the August 1996Maori Congress hui .

7 Bolger is quoted as stating. "The sovereignty of Parliament isindivisable" in Walker 1996:90.

8 Marae, NZTV Channel one, 6 Oct 1996.

9 At time of writing, MMP elections had yet to be held.

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