21 August 2009
Speech

Traversing the landscape

Speech to Law Society Conference “Governing and Running Maori Entities – Tribal Development and the Law in the 21st Century” at Te Papa

Our Ngati Kuri whäea, Saana Murray, said in 1975 during the Roopu Matakite land march from Muriwhenua, the tail of the Fish, to the Upoko: “We move to regain our land, but not for land’s sake, but for heritage, for our identity as tangata whenua of Aotearoa”.

As is often the case in the world of ephemeral politics or erratic markets we ought not overlook the deeds of earlier generations. It is also important to acknowledge that activity concerning structure, function and transaction is gathering pace within te ao Maori and professionals must be up to the task.

These tasks are of an instrumental nature. Their value is easily measured in the labour market. However there is a deeper value and this relates to the intrinsic mission that each generation is expected to fulfil if the concepts of identity, tangata whenua and Aotearoa are to remain dynamic. Such roles are not static and neither should they be primarily technocratic. Presumably they are all moving us to a new horizon. We must not allow the instrumental complications to become an end in themselves.

The underlying purpose, the kaupapa, of our efforts is where primacy is found. It will endure if we grasp the power of deeper influences and remain alert to emerging trends. The life force which has subsisted through generations has not perished; rather it is taking different forms of expression.

As Dame Whina Cooper exhorted her youthful supporters in 1975:
“Kia mataara, hokia o koutou tuohutanga e whai kanohi ai te hau kainga.”
“Be alert, go back to your heritage so it has a face and a set of eyes.”

The name, Matakite, of her historical movement has not lost its appeal. Much of the Treaty resurgence and identity renaissance can be tracked back to the humble marchers and their message of foresight.

There was no way of knowing how Dame Whina’s efforts would feed into a current of development as Maori pressure grew and political opportunity arose. Moments in time were to be seized.

Activism as a tactic grew in popularity after the Matakite marchers. Its power in terms of creating energy and momentum gave a new generation a platform. It also allowed Maori to challenge themselves to bring their agenda to the top of the queue.

Sluggishly governments responded. The Waitangi Tribunal was established in 1975 but it was branded “a paper tiger”, too timid a response and definitely not capable of distracting Maori activism.

It would take ten years before a government replied with a legislative response that could absorb grievances into the machinery of the State. This machinery is not always the impersonal office we imagine government to be. It can be and was made real by personalities such as Judge Eddie Durie who obviously had a vision about the Treaty always speaking, and Maori as being at the core of our nation’s foundation.

The detailed nature of the legislative provisions will not be canvassed here. Suffice to say that it was in response to the force of political activism and the desire of some politicians to move from confrontation to conciliation that opportunities arose. The Waitangi Tribunal Act was improved in the 1980s and gave scope for Maori claims to be investigated back to 1840. However the legislative road was not predictable.

It is ironic that one of the most far-ranging changes to the legal landscape for Maori Treaty claims came by way of a virtual side wind. The structural adjustment programmes of the third Labour government required legislation to enable traditional state bureaucracies to be transformed. In keeping with the neo-liberal prescription, corporations were created under the State Owned Enterprises Act, 1986.

During this period of time the Waitangi Tribunal was opening the Muriwhenua iwi claim at Te Häpua. Urgent submissions were made to the Tribunal about the above proposed legislation. The story is legendary as the Labour politicians of the day sought to liaise with the head claimant Hon Matiu Rata, departmental lawyers, and the officers of the Tribunal. The phone lines into Te Häpua were modest to say the least. Frantic calls from Wellington competed with locals calling to check on their horses, nets and mokopuna.

The Crown was represented by departmental lawyers and the claimants had David Baragwanath QC. His essential submission was that the disposal of Crown assets by way of the new legislation would render the claims null. They would face no ongoing obligation or be a part of the core Crown. This was accepted by the Tribunal and dutifully sent off to Wellington.

Sir Geoffrey Palmer, the Deputy Prime Minister and Attorney General, was also in contact with other iwi leaders although it was the memo from the Waitangi Tribunal Chairman that carried critical weight. For reasons that have never been fully examined or explained the SOE bill was changed and section 9 was added. This gave Maori arguments about the Treaty in law a level of authority hitherto unseen.

The rest is history. Jurisprudence flowed and Maori crossed the bridge from political protest and entered into judicial activism. The path had been somewhat chaotic. It is perverse that legislation designed to dispose of the very resources Maori had historically claimed was the platform which led to ringing of the cash registers which now contribute to your careers.

All governments have programmes which they are keen to move ahead on. Inevitably these often do not coincide with Maori interests. Where these clashes are significant the tactics of protest marches are not neglected. As the earlier episodes showed however the durable solutions require a statutory or institutional response.

Although the judiciary can give a boost to Maori claims, the focus is now on the highest court in the land, Parliament. Remedies lie in the thicket of parliamentary politics. Obviously the signal example of this is the Seabed and Foreshore, an episode where Treaty and Maori rights have been contested in the courts, on the highway and in the ballot box.

So what of the future for our iwi institutions that embody the work which has taken place since 1975? How do or will they give effect to Dame Whina’s exhortation to “kia whai kanohi ai te hau kainga”? Of course the word kanohi means face as well as eyes: a face to be seen and eyes to see. Hau kainga is not a term that translates easily into English for it means more than home, it suggests something sacred in the site and ancestry.

Underlying the machinery of accountability, transparency, rules and regulations, Maori will face great challenges to keep alive indigeneity. Professionally we can derive solutions for the above technical administrative tasks. The task however of projecting and evolving our identity in a way that influences the nation’s overall personality, whilst keeping our tangata whenua mana, is beyond corporate instrument.

Finding investment positions that garner support or admiration within the community beyond ourselves may very well move our agenda closer to fellow New Zealanders. No doubt this will be tested as capital becomes scarce and anxieties grow about owning our own key assets. The diversified portfolio approach or the economic partnership model of Maori where increasingly investment plays in strategic areas becomes untenable unless you have a Maori partner.

As immigration and multiculturalism grow, what will become of our bicultural norm? The Crown has been a very a malleable partner in the Treaty claims. Whether it has been the Queen, the governors or the Lands and Survey Department, the Crown has been invaluable in defining our special role vis à vis other citizens. One should not take this for granted.

Diversity in our population is increasing. Will this mean an erosion of Maori standing in the affairs of the nation state? A possible hedge against this is the consolidation of power and influence in key economic spheres of the nation’s life. In this way our role is seen as bolstering patriotism or contributing to national pride. Rather than our indigeneity being seen as something we are cultivating exclusively, we should treat it as a source of reassurance to be found at the core of our national pride.

Innovation is the national catchcry which is tossed around as New Zealand seeks to expand goods and services without relying on further commoditisation. As we move beyond debates in courts, marching, and debating with politicians it is evident we have many people in positions which were valuable in claims conflict but not necessarily so in post settlement challenges. The mindset will need to change from internal rivalry to international competitiveness.

The Latin saying “Multa pecunia, multa cura” - Much coin, much care - highlights the new peril. The threat of loss is very real. While the resources we sought to recover were held by the State they were accessible, admittedly of little use but largely available. Now in our hands these resources are at risk of the failings of our own stewardship. If lost, unlikely to be regained. Thus accountability is vital - afterall the mission is multi-generational. Skilful business and political management require clarity and forcefulness. More than ever however foresight is critical when one considers the effects of the global meltdown.

To capture the benefits of innovation we will be forced to look out and form relationships with constituencies who were not relevant or neighbourly in the claims conflict process. Our ability to maximise value from these new associations will require flexibility within our organisations. The balance between Dame Whina’s injunction “not one more acre” and the capacity for new investment will challenge us every year. Essentially it is about culture and markets. History sanctions the former while the future fuels the latter.

International forces and their impact on small open trading economies like New Zealand are inexorable. A prime example of this is the current state of climate change negotiations. This will have an effect on our wealth, our standing and our system of government. Closer to home is the harmonisation of Trans Tasman relationships. These developments lie at the core of our political economy. They will happen with our input or without us.

To have arrived in post-settlement space is not to alight at a fixed destination. If we are to increase our influence as tangata whenua we need to do it as part of the Aotearoa project. Power lies in the future. Our share of it will be expanded through positioning our people and skilfully transforming our image so we are at the forefront or at the core of remedies to both new and old problems.

The expansion of the NZ economic estate is where our mindset needs to be. The agile and shrewd know that our fortunes as tangata whenua depend on whether we continue to aspire and achieve as a First World country or drift into a new category of Pacific Island nation with poor profile and diminished relevance.

Participation is unfinished business. Passivity is not what the Matakite of the 1970s had in mind for the future. Our institutions and their governance are levers for transformation. What profit is there in a dividend if it comes from a body whose people continue to occupy the worst statistics within a region? Participation also behoves us to prepare our own. By all means draw from the best brains to achieve commercial excellence but husbanding our own talent is the best internal test of participation.

The concentrations of our institutions and our governance debates have an inevitable inward focus. The forces which will define our prosperity are more external than internal. Our language has to go through a subtle shift towards an inclusive lexicon. An excessive focus on an exclusive agenda will sideline us. Historic friction is a phase we have gone beyond. Protracting it in our leadership or embodying it in our mission may have been de rigeur for protest performance but it is not a viable face for the future.

The legal profession has benefitted handsomely from the last three decades of activism, litigation, inter Maori wrangling and political negotiations. These talents and energy need to be directed towards a bigger project. They need to uncover opportunity to expand the size of the bounty. The profession can influence and guide or fight and divide. Its character is on show. Given the large number of Maori attracted to its ranks it must show foresight in our affairs beyond discord and historical umbrage.

When future generations look back at this time will they record our contribution to the renaissance journey in any way iconic? Will they recall that this generation took up the stewardship challenge by extending their leadership skills beyond grievance? Will they remember a time where Maori consolidated internally and with the foresight of the Matakite identified with a vista broader than themselves but richer for Aotearoa?

ENDS

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