Te Tiriti

Jane Kelsey: Margaret, you were, with Moana Jackson, co-author and co-coordinator of a constitutional consultation amongst Maori as to what constitutional change should look like, so what for you would be a Tiriti-compliant approach to how we should address these kinds of agreements and international relationships?

Margaret: [He mihi] Most of the work that was done on constitutional transformation was done by Moana Jackson. He wrote most of the Matike Mai report, and he is very clear it is transformation not change – we have to unpick what’s there and start again. He called together 252 hui around the country in order to determine what it would take for Maori to be able to live in the country in a way that was relevant to them and so that Maori no longer lived at the margins of this country that is, in fact, ours.

The main thing was that the existing constitutional arrangements in this country do not work for our people and there has to be fundamental change. That change goes back to the Treaty that was struck in 1840 and the Declaration that was issued in 1835 that said very very clearly where power and authority lies in this country. We call it mana, in British terms you call it sovereignty. It lies with the hapu, not with the iwi, not with the collective of groups of extended families, but with the hapu, the economic units of Maoridom. And hapu have never ever ceded that. To this day they still consider they have it.

Some, particularly those of us who live in very remote areas, still exercise that authority. I’m talking about my own hapu, Te Whānau Moana of the iwi Ngati Kahu. Any government or local government official or person who wants to come onto our territory can’t come without our permission. And if they do come it’s because we ask them and they have a specific task they will do. Once that’s done they are gone. In my hapu we make our own decisions about our own lives on our own land. It makes no difference to us whether the government says to us “but you don’t own that land, someone else has title over it”.

We are remote enough (you would never get away with this in Tamaki Makaurau) that we can just say you can tell as many lies as you like and write down as many lies as “you like on paper that you call title to land, but we know that land is ours and we will take over and take back our lands”. We don’t call it occupation, we call it repossession.

And we try to build our own economy. We will trade with whom we wish to trade. At the moment my hapu is setting up a relationship. We do things differently when we trade. We build relationships first, and we decide if these are the kinds of people we want to work with. At the moment we are working with a very large capitalist-organised company in China. They have similar thinking to ours, and they also know – because we said so at the beginning – when you come in here you come into our territory, our land, we have our own rules. You are our guest. Please live by our rules. We will decide what those rules are, not the NZ government.

This is the sort of thing we were told as we went around the country talking about the transformation that needed to be made to the constitutional arrangements in this country. So the report, which was written largely by Moana, looks at the fact that the constitutional arrangements currently are failing. But don’t concentrate on that, concentrate on how are you going to live and conduct yourselves in a way that does not perpetuate that situation, does not perpetuate the poverty our people are forced to live under, that we will take back control of our lives.

So you will see in the report Moana talks about creating a future environment where Maori are fully recognised and respected in this country for who we are. We are the mana whenua, we are the power and authority in this country. We are the ones who are ultimately responsible for the wellbeing of this country and everybody in it. That hasn’t been recognised. But we will continue to operate as if it has, within my hapu anyway. And that tikanga, our laws that were here long before anyone else came, matauranga Maori our knowledge systems, He Wakaputanga the 1835 Declaration of the location of mana in our hapu, and te Tiriti are all a natural part of the order of this country. There is no debate about this. It’s just the way it is. And you walk your talk on this stuff. As a result of this hapu and iwi exercise their own mana. As you find in my hapu, when you exercise your own mana that includes taking on responsibility for everything that’s good and everything that’s bad as well. But you are responsible for your own wellbeing.

All peoples have a respected constitutional place in this country. Now that is something that came to disturb me more and more as we went around the country – it is not just Maori who are marginalised in this country. There are a lot of other people who are marginalised. So when we took this report out and around the country we got asked particularly by people who are not of European descent whether they could please be a part of the Maori part of the constitutional makeup we were talking about. The models we ended up putting up meant that the Crown would stay where it is and look after its people, probably with its Parliament. Maori would look after our own area of influence (we got this ‘sphere of influence’ out of the Waitangi Tribunal) under our own tikanga, our ways of being. And they would be quite independent of the Crown’s and the Crown would no longer have any right to have any say over Maori matters because it was not allowed for in Te Tiriti and certainly not under He Wakaputanga. So the way the Crown operates now is quite illegitimate. When people asked if we can please be part of you, we said “fine provided you want to live under our tikanga”. And what disturbed me even more was that Pakeha came and asked if they could join as well; well, fine if you want to live under our tikanga – just remember you’ve got the Crown over there as well. But they have to learn to talk to each other, properly.

The constitution that is put in place must be good, just and participatory government for and by all people, not just a privileged few, which is what you have at the moment. It must be consistent with the values we talk about in the report and we will talk about here, and that it benefits everybody. This is part of the underlying value system that Maoridom has. If some do not benefit then your system is failing. And at the end of the day all NZers prosper and celebrate the heritage of what we have, not just those who can derive monetary benefit. I often wonder where they sit spiritually, because that’s what gets sacrificed with all this capitalism and neoliberalism.

We have not been consulted on these agreements in any way, shape or form, and I am quite surprised at the comments from Canada that the NZ government has been consulting them. I am a member of national iwi chairs forum, so I know what’s going on there and I know they won’t come and talk to us (although I’m not responsible for what half the members of the forum do either!). It is clear to me, especially when we were doing the constitutional transformation work, that Maori throughout the country have to take back control of our lives, and we are going to do it in every forum that we need to do that.

A lot of our people, as Ani will talk about, are a bit scared. We’ve been in this colonised space for some time, and they have to build confidence to know that they can make their own decisions. Tanya, the kind of work you are doing in Southern Initiative is really important to give our people the space to get back that confidence to say you do not have to constantly be slaves. I did like that question about leisure. For my people at home, my nieces and nephews, who refuse to keep paying rent, and go home and say to hell with the local council about resource consents – we build our own places to live in and we make our own lives work, and we do a bit of work to get some money. But we are back with our whanau, living life the way we knew about and we are about 2 generations away from when it was actually done in practice. There are enough of us still around to say “and this is what a communal garden looks like, and this is how you need to be looking after the mokopuna”.

So when the big investors come from overseas we’re not scared of them, because that is still a part of who we are – provided they don’t run roughshod over us. Now the first lot who came out home in Karikari peninsula was an American. We ended up dragging him through the courts up to the Supreme Court because we had the expertise within our whanau to know how to do that. He got the hell out of there and sold to the Chinese. The Chinese were a totally different kettle of fish. This particular Chinese company was more concerned with relationships. We can relate to that. If we couldn’t we would have fought them the same way.

What I am hearing here is, our people will get there. But we can’t do it immediately tomorrow. We need to give ourselves, and from what I am hearing from the rest of you give the country, the confidence that you can actually make your own decisions for yourselves and not let those bureaucrats in Wellington do that. Someone was being generous about those bureaucrats in Wellington – I’m not.

Question: I respect the majority of the korero has been around tangata whenua. As a trade union organiser I am out each day trying to improve people’s lives against the corporate hegemony. I’m interested to get a response around your focus on he tangata: how do the people benefit from your approach. I think that’s a great conversation to have.

Margaret: The key thing is about giving people back power over their own lives and control of their decisions, and to do things that are relevant to them instead of being, as so many of our people are, slaves to other people and they never get to see the benefit. The work has to be relevant and the work has to benefit our people. The need for us to have our marae is just fundamentally important and yet I see no provision for the upkeep of our marae, we do it all pinching and scraping. We have stop that happening. The marae are the centre of our lives and that’s where we need to be.

Jane Kelsey: Ani, we were talking about the other day about what the principles of tikanga might be that could underpin a different way of doing these kinds of agreements and relationships, and how transformation might occur. In particular, the really different model of thinking about law from a tikanga based approach.

Ani: [He mihi] I can only really come to the topic of tikanga and values, or maybe more so kaupapa, from my own experience as someone who is part of Ngati Raukawa, and we have a particular history, and as someone who has worked at te Wananga o Raukawa for a number of years.

I want to describe to you the kind of organisation we are, which strives to be a tikanga-based organisation. At first glance that might seem a little odd. Why would we need to strive – surely it would come naturally to us, wouldn’t it? Around 98% of our staff are Maori, probably a similar proportion of students are Maori, we teach tikanga Maori, te reo Maori, so you would think it would come naturally to us to be a tikanga-based institution. But the fact is that after nearly 200 years of being ‘educated’ and cajoled and bullied and told we should behave differently, we have had to face a slightly unpleasant truth that our default setting is probably not tikanga any more. It’s more like the law of the coloniser. So if we want to be a tikanga-based institution, what our tikanga used to do automatically, we now have to be quite careful and deliberate about doing.

When I said our experience of the past 30 to 40 years might be relevant to the discussion today is because I get the sense that for many people now there’s a certain way of going about doing trade and doing business, and a certain way of operating that has become normalised. At this hui we are trying to create a new normal, a different normal, a completely different approach. Within Ngati Raukawa and te Wananga o Raukawa we set about trying to change our default setting – that’s what I call it. I sense that’s what you are trying to do here too in trying to change the default setting and what that might look like.

When I think back on our experience there were certain things we had to do to make the transition possible. And in the panel before this I could hear some things coming through that sounded familiar to me. One of the first things we did was we came up with a vision. A clear vision of what we wanted. Then the time had to be taken to ensure that was shared. So when I hear from Annie Newman about Te Ohu Whakawhanaunga to advance the living wage it seems that’s the kind of process that’s going on there. Once we had a widely shared vision, then we committed to some shared principles that would underpin the way we would operate. And then we had to figure out how we would create tikanga or practices that would express those fundamental principles or kaupapa. Now the practices can change over time, but the kaupapa or fundamental principles haven’t. They might, but so far they have stood us in good stead. But we also need to constantly review ourselves to make sure that we’re not going back to the old default settings. We have to be prepared to call one another out if we think we are doing that. It’s a process that’s not for the faint-hearted. But it can be achieved.

What I would say is, we have been on a journey for the past 40 years, back from the brink of what some might call cultural extinction. I wouldn’t say we are perfect, or that we’ve come close to achieving our goals, but we have made progress and it’s because that was the process we went through. It was great to hear people in the previous panel talking about building that shared vision and getting people to commit to it. Then the next steps will be to come up with those principles. We have 10 principles or kaupapa that underpin everything we do. We take it really seriously. If we are doing something and we can’t explain how this particular practice is expressing a kaupapa then that process won’t fly, we can’t do it. I don’t have enough time to talk about all the principles; maybe we can get back to them all later.

One of them is rangatiratanga. It’s about authority, but more importantly it’s about how authority is exercised. About 20 years ago Bishop Manuhuia Bennett had this a wonderful series of statements about the characteristics of the rangatira. He kai o te rangatira he korero – the food of the rangatira is talk. That doesn’t just mean that leaders are eloquent, although they often are, they know the power of the word to persuade. More importantly, a rangatira keeps their word – so if you say something, you keep to that. So that’s about integrity and honesty.

The second part of his korero was te tohu o te rangatira he manaaki – the mark of a rangatira is the ability to look after people. That’s actually about acknowledging and respecting everyone around you, and enhancing their mana, and to understand that mana is not a finite resource. If Annette and I are in a relationship, the more mana she has the less I have? That’s not how it works. I am expected to behave in a way that respects Annette, enhances her mana, and in doing that it actually enhances my own mana. So it’s a win win.

The third and final part of rangatiratanga is te mahi a te rangatira he whakatiri te iwi. That’s about kotahitanga, social cohesion. You exercise your authority in a way that pulls people together, makes people collectively strong. There’s a whole lot of other principles, but that will have to do for now.

Question: I respect the majority of the korero has been around tangata whenua. As a trade union organiser I am out each day trying to improve people’s lives against the corporate hegemony. I’m interested to get a response around your focus on he tangata: how do the people benefit from your approach. I think that’s a great conversation to have.

Ani: Again, if you get the principles right and a commitment that everything you do has to tie back to those principles, the people will be looked after in a 100 different ways – which I haven’t had time to go into. You’ve really got to start with that shared vision, and shared commitment and the rest follows. It sounds a bit simple, but it’s actually really hard work and you have to do that first.

Jane: Following on from what Margaret Mutu said as well, when we talk to officials in the other zone of these agreements, it’s as if there is no conceivable alternative that is viable and can happen. You have both been talking about realities that are working today that are living alternatives in this place. But they are invisible in that other zone.

Jane Kelsey: Amokura is an technical academic intellectual expert in the investment side of these agreements, and was also the expert for the Waitangi Tribunal itself in the claim on the Trans-Pacific Partnership Agreement. And her whanaunga from Ngāti Whātua this morning set the kaupapa perfectly. I wanted to ask what were the main challenges that emerged out of the Waitangi Tribunal process that need to be addressed before we can have the kind of discussion that Ani and Margaret have talked about.

Amokura: I went into the Waitangi Tribunal hearing on the TPPA as an investment law expert appointed by the Tribunal. I’m a commercial lawyer, I hadn’t spent much time on matauranga Maori. But one of my first observations in talking about tino rangatiratanga was that the Crown simply assumed that because it was the state it had the sovereign authority to negotiate these agreements on behalf of everybody. It just didn’t acknowledge the rangatiratanga of Maori and it was incredibly frustrating to watch all the claimants trying to say, “but we’re Maori and this is about the Treaty”. And the response of the Crown was the constant refrain that “well, you don’t really have any interests in these agreements, and we tried to consult with you”, as if consultation was sufficient.

I don’t know what the answer to that is. But the starting point would be to actually acknowledge that rangatiratanga and change the way the Crown sees itself externally. Rather than this notion of the unitary state, which just doesn’t work and is in itself not compliant with the Treaty. The Crown’s view of where the Treaty fits on this issue is at a very low level interest, if it exists at all. So even before you get onto the economic discussion and how you might lift up Maori economic performance and participation in these agreements, there’s a fundamental statehood issue that we all need to confront.

What else did I see in terms of challenges? The agreements we have at present are simply not set up to acknowledge the kinds of economic interests and social interests that Maori have, except to the extent that Maori participate in the economy on the same footing and in the same way as Pakeha businesses do. So that’s an issue. The agreements we currently have, from the most recent CPTPP back to the original ones, are just not set up for the kinds of interests that we’re likely to have.

My role in the Tribunal process was to look at the effectiveness of the protective mechanism. There’s a provision in all these agreements that’s meant to protect Maori interests. That’s about the extent of the recognition of Maori interests in these agreements – the defensive interests. And the protection in itself is not good enough, but perhaps we can talk about that later. Just in broad terms, without getting into specifics, we’ve got the constitutional status issues to look at, then also what interests Maori have that can be promoted through these agreements, and then we have to fix the protective mechanisms as well.

Let me use the example of investment, which I am most familiar with. The idea is to encourage foreign investment, more into NZ and more NZ overseas. So the positive economic interests would be if Maori are foreign investors offshore and foreign investment in Maori enterprises. These agreements do that by making it easier for investors to do so, and then protecting the investments once they are made. In terms of trying to facilitate Maori benefit, those are general economic policies to get Maori active in the general economy, if that’s what we want to do. Then adjust the agreements to take into account or reflect the kind of economic participation we want. So that’s an adjustment.

On the protective side of things, one thing foreign investors don’t like is regulatory change. That creates risk and uncertainty and they don’t like that. These agreements are designed to promote regulatory stability. That’s an issue for the Treaty specifically, because we are just so far away from achieving good regulation in NZ from a Treaty perspective, and we need to change a lot. So these agreements also need to accommodate the kind of regulatory transformation that we need in NZ.

Let me pick up on what Margaret Mutu was talking about in the development of their commercial relationship with Chinese up North. Maori are far more likely to want to have relationships with foreign investors and invest in those relationships, rather than having random investors coming in waving their cheque books around. And investor-state dispute settlement, ISDS, is not part of a tikanga approach to doing business. The relationship comes first – trust. We don’t talk about rights and protecting rights and suing the government because they changed the law. It’s a completely different view of what good foreign investment looks like.

Question: I respect the majority of the korero has been around tangata whenua. As a trade union organiser I am out each day trying to improve people’s lives against the corporate hegemony. I’m interested to get a response around your focus on he tangata: how do the people benefit from your approach. I think that’s a great conversation to have.

Amokura: The suggestions I was making were broad and general. They would likely see a de-emphasis on the large multinational corporations that currently benefit from the style of agreements we have, which aren’t set up to try to look after local interests; they are set up to facilitate the kind of foreign investment that travels around the globe, and it tends to be large corporates that do that. If we shift the focus of the agreements and what we want to get out of them then we will probably end up shifting somewhat the kinds of people who benefit from them.

Here’s a specific example. Corporate Social Responsibility was mentioned before. If we look at a current trade agreement like the CPTPP, there’s a provision in the investment chapter which says we urge the state parties to consider the voluntary adherence with principles of Corporate Social Responsibility. Now if you are taking the kind of approach we are talking about you turn that into a concrete obligation, so it actually means something – you don’t get the benefits unless you do it properly.

Jane Kelsey: At the end of Stage 1 of the Tribunal, because we’ve still got Stage 2 to go, what were your takeaways about the key issues when we got to the end of that phase?

Annette: [He mihi]. To follow from Amokura Kawharu, I came away from the Waitangi Tribunal with the recognition that while the Treaty clauses may have been seen as reasonable when they were inserted at the time of the Singapore free trade agreement in 2000, they are not effective in terms of protection.

I came away with the recognition perhaps by the Tribunal that the Crown’s assumption that they can develop these agreements and to assert a sovereignty over the authority that Maori possess is not right in 21st century Aotearoa, just as it was not right during the NZ wars.

The third thing I came away with is that Maori are ahead of other citizens on matters like whakapapa protection, on the desire that is expressed in commercial terms as trade marking or patenting, but which is actually protecting our taonga; and on the injustice in giving foreign investors or corporate entities or multinationals an elevated status over ordinary citizens and Maori as a general community, which is quite wrong. The tribunal recognised that, but didn’t have the time to grapple with how we might fix that up. That is where we go to in the Stage 2 inquiry.

The disappointing thing about it is that this challenge to TPPA is the latest stage in a 30 year challenge that I have been a part of, which is Wai 262 Ko Aotearoa Tenei on traditional knowledge. Notwithstanding a 10 year process back then which was led by great leaders of ours who have now passed on, there is an inability of the bureaucracy of this nation to deal with issues that have been right before them for 30 years. It’s a deliberate decision on their part to ignore it. But while they are ignoring it, Margaret Mutu and Ani Mikaere identified what Maori are doing – we are ignoring them and we are developing, reframing and recapturing our own systems of authority and protection that are going to guide the nation.

I look at the forestry stuff that was being discussed this morning. Even Te Arawa FOMA are not into this nonsense of just planting trees and exporting them anymore. That’s not an option for protection of our lands. It might be a short term capital gain, but it has no benefit to the sustainability of our environment, which is an integral obligation of us who live on these lands. That had to be recognised in the NZ First slush fund. They had to look at ways to develop those lands that protect environmental obligations which are paramount over their commercial objective. So that’s what’s happening in that environment.

I listened to Margaret Kawharu about all these billions of dollars we are meant to have and I actually resonated more with Tanya Pouwhare that these billions of dollars are not trickling down to the Maori that I mix with. I am in court every day with the average $16,000 a year person, most of whom are ending up in jail. One Maori person a day from the Rotorua district court goes to jail. So at the same time as we’ve had these billions of dollars injected into the central North Island through the CNI investment and settlement, there has been no change, but a 3 fold increase in the social deprivation indicators. It doesn’t make sense to me. Foreign investment hasn’t worked for us and repossession of those commercial opportunities isn’t working for the average Maori.

So that disjuncture, which I do say is part of the systemic problems of free trade, has to be confronted and Maori are confronting it. We’ve already started, as Margaret said, in developing our own relationships but they are with indigenous people too. So the word foreign is a bit foreign – I don’t see indigenous investors as necessarily foreign to the values that I uphold. The language of ‘foreign’ and ‘nation’ and whose nation and who are the citizens, the language around that need to be challenged as well.

That’s what I came out of the Tribunal with. I don’t think the Tribunal is ready for stage 2. I think the Labour-NZ First -Green coalition has helped them a little bit with the ‘no ISDS’ position, as that was a trouble for them. But I am still sceptical. I have yet to see anything that has that written in it. And given my last 30 years experience with the Crown I won’t believe it until I see it.

One of the key outstanding issues since Wai 262 is there is no effective Maori engagement process with either MFAT, MBIE or any other nominated Crown entity. That has been a huge issue. So now it seems they have by-passed us – they tended to have consultation amongst themselves. Their idea of consultation was MFAT talking to representatives of Te Puni Kokiri. Maori they might be, but they are both the Crown. Now they have decided the Waitangi Tribunal has said we have to develop better engagement with Maori communities. They have invisibilised us and it seems from what Wayne said they have gone to our indigenous cousins in Canada directly. I find that quite insulting. First, that Canadian indigenous peoples have even thought they could represent a Maori position on this to the government. But more fundamentally that the government has bypassed any direct process of building an engagement model, of directly involving the keepers of Maori taonga in that engagement, and are now going to say that NAFTA’s got a new clause, we’ve talked to the indigenous communities in Canada of how that clause got in, and we are going to have Trudeau’s model brought here. That’s the kind of cultural arrogance and ignorance that we rally against. And if it’s going to be perpetuated under the current government it will no doubt be the fundamental challenge in the next phase of this Tribunal.

Iwi leaders have been asking for our people to construct democratically elected representatives to deal with these agreements and we should be supporting that. We need national and regional hui where we nominate our own people and they set up the processes for engagement. My problem with iwi leaders is they don’t do the democratic part at the moment. They self-appoint. So we need to build those participatory processes among the communities ourselves. That’s not for the government to do, that’s for us to do. But the government has got to recognise they can’t bypass Maori, certainly not in the 21st century, for all the reasons that you’ve heard today. We are still not frightened to protest, we are certainly not frightened to challenge. It’s big hitters – the NZMC, iwi leaders forum and the activists – who will lead the charge. So things like the social injustice we talked about today, we will be the first ones to lead the charge and our battles will be in the streets, the courtrooms, and we will make change. I am very clear on that.

Question: The NZ super fund is worth $40 billion, but only $5 billion is invested in NZ. When challenging Crown entities, is that in your sights and can we assist with that?

Annette: It has been the subject of discussions in Waitangi Tribunal hearings I’ve been in. They’ve challenged the kinds of investments the Fund has made that aren’t ethical in terms of Treaty obligations – not so much the quantum. I agree we should be looking more to utilise that fund within this country and the relationships it can build, the social entrepreneurship we need, as well as the rangatiratanga reclamation processes that we need. One of my concerns, like with planting pine trees, I can’t see how that’s going to be good for us in the long term. I’d like to see more investment in native forest reclamation, a cleanup fund for our rivers, that kind of social investment. In the current water case, all those things are being talked about. And it’s in that context that I’ve heard the super fund talked about. But no specific challenge to the fund itself.

Question: I respect the majority of the korero has been around tangata whenua. As a trade union organiser I am out each day trying to improve people’s lives against the corporate hegemony. I’m interested to get a response around your focus on he tangata: how do the people benefit from your approach. I think that’s a great conversation to have.

Annette:   You heard the example of Miraka this morning. They have some environmental standards, but they also have some employment standards, like maintaining employment of beneficiaries, and the living wage is already written into those agreements. Some of the trusts that are investing in Miraka have broad statements of corporate intent that are things like, a dairy farm is required to do something to counteract the footprint for climate change, such as transforming over time from dairy to growing flowers. And for workers, making sure in the process of transformation that there are appropriate relationships in place so workers don’t lose their jobs. I come from Kawerau and Murupara. The last transformation was a sell off and made those places ghost towns. People are talking of how to bring them back.

Another example, I’m presently in the Waitangi Tribunal fighting for Maori nurses, because in the whanau ora space the public private partnerships do not guarantee a living wage for the nurses. We see disparities between those who work for the DHBs and whanau ora, sometimes as much as $10 an hour for workers. That’s got to stop. So in this space of Maori development, we are very conscious about workers, because we bear the brunt of what the free trade experiment – I think they called them structural adjustment programmes this morning – have done to that. The other thing is that we are still the greater proportion of unemployed in rural areas. We actually need to have the unemployed, because our marae would die if we didn’t have people working there. They are the backbone of our culture.