A People's Constitution for Aotearoa?
SOCIALIST WORKER FORUM:
A People's Constitution
Over the last two decades the Treaty of Waitangi and the “principle of partnership” between Maori and the Crown has been progressively worked into NZ’s constitutional framework.
But both Labour and National have made it clear, through actions such as the seabed and foreshore legislation and opposition to the UN Declaration on the Rights of Indigenous People, that the principles of the Treaty have secondary status to the power of the state. This has led many to the conclusion that the “partnership” is one-sided.
In the latest Socialist Worker quarterly UNITY, Vaughan Gunson puts the case for a new “people’s constitution”, based on the principles of humanity, ecology, co-operation, equity and democracy. Such a constitution would only come about through a mass movement of Maori and other grassroots people. See A People's Constitution for Aotearoa?
Daphne Lawless, editor of Unity, will examine the debate on constitutional change and look at the process of forming a new people’s constitution that has taken place in Venezuela. Could such a process happen in NZ?
WHEN: 2pm, Sunday 31 August
WHERE: Socialist Centre, 86 Princes St, Onehunga, Auckland
more details phone 634 3984 or email
A People’s Constitution for
by VAUGHAN GUNSON
from UNITY Journal, July 2008
Tino Rangatiratanga mo te Ao Katoa. Self-Determination for the Whole World
Last year the United Nations produced a
Declaration on the Rights of Indigenous People which had
been 24 years in the drafting. It was finally presented to
the UN General Assembly to be ratified. The vote: 143 for
and only 4 against. The countries that opposed this
reasonable, but far from radical, declaration were the
United States, Canada, Australia, and New
Maori in this country were outraged. Dr Pita Sharples, Maori Party co-leader, said it was “shameful to the extreme, that New Zealand voted against the outlawing of discrimination against Indigenous People; voted against justice, dignity and fundamental freedoms for all.”
The reason Helen Clark’s Labour government gave for voting against the declaration was that the definitions of self-determination extended to the exclusive control of territorial resources. This, they said, threatened the sovereignty of the nation state. Echoing claims made by former National Party leader Don Brash in his infamous “race speech” of 2004, the government claimed that the UN declaration was “discriminatory” and could see “separatist minorities breaking up countries”.
Following Labour’s move to legislate away the right of Maori to have claims to the seabed and foreshore heard in the courts, the decision to oppose the UN’s declaration on indigenous rights was at least consistent.
Over the last two decades the Treaty of Waitangi and the “principle of partnership” between Maori and the Crown has been progressively worked into NZ’s constitutional framework. But Labour, supported by National, has though its recent actions given a clear message: the principles of the Treaty, and any rights Maori assumed under the law, will have secondary status to the sovereign power of the nation state, particularly as exercised by the government executive. In recent Acts of parliament references to the Treaty have been stripped back.
Where does this leave Maori? Is the idea of partnership between Maori and the Crown a fallacy? Is the struggle for tino rangatiratanga always going to be quashed by the power of the state? And does the struggle for Maori self-determination threaten the rights of other people living in NZ, as Labour and National politicians claim?
What’s being asserted by the two main parties is a highly centralised view of power and authority within the nation state. This is the assumption that’s currently framing the mainstream debate about the Treaty and Maori rights.
But there’s an alternative to this centralised model, which is a state where sovereignty is devolved downwards to the people, to local communities, including indigenous people. It’s this model of decentralised power which is being practically implemented today in Venezuela. Mass democratic mechanisms like nationwide Communal Councils are beginning to put sovereignty in the hands of the people. These achievements are positively impacting on Venezuela’s indigenous peoples.
These historic developments are proving that the kind of sovereignty and respect demanded by Maori in NZ is possible within a decentralised constitutional framework that empowers all grassroots people. For that reason what’s happening in Venezuela is well worth looking at.
The struggle in Latin America
In recent years there’s been a revolt against neo-liberalism across Latin America. Indigenous people have been at the forefront of these struggles. Most famously in Bolivia, where indigenous people bravely and successfully resisted through direct action the privatisation of water – the so called Cochabamba “Water Wars” of 2001. The movement has since elected Bolivia’s first indigenous president, Evo Morales, who is seeking to push through radical reforms that will benefit indigenous and other grassroots people.
But it’s in Venezuela where a social justice movement has been the strongest and most successful. This has opened the way for real advances for indigenous people.
In 1998 Hugo Chavez, a former army officer, was elected president of Venezuela. The victory of Chavez, a hugely popular figure among Venezuela’s poor, kick-started a political and social challenge to the old Venezuelan society.
The dominant oil industry has been wrestled from the hands of a corrupt Venezuelan elite in partnership with international corporations. Billions of dollars that used to be plundered yearly by the rich and powerful is now being used to improve the lives of Venezuela’s poorest.
Venezuela’s 535,000 indigenous people (2.1% of the population), belonging to 35 distinct tribal communities, have been right behind the reforms carried out by Chavez and have been active in the movement.
Like the rest of Latin America, Venezuela has a bloody history of colonial oppression: mass killing, slavery and land confiscation – but there’s also been a proud history of resistance. In 1990s the movement of indigenous people demanding their basic human rights grew in strength across Latin America. An important umbrella organisation of Venezuela’s indigenous peoples, the Venezuelan National Indian Council (CONIVE), was established in 1989. The groups aim was to defend indigenous land and resources from commercial exploitation by big business.
Crucial to the ongoing support indigenous people have shown Chavez – both independently and through collective organisations like CONIVE – was the process of re-writing Venezuela’s constitution in 1999. This placed indigenous rights within an overall vision of a fairer society.
A new peoples’ constitution
In Latin America there’s been a history of countries changing their constitutions, a reflection of often intense political struggles. Some of these constitutional changes have been imposed from above by elites looking to secure their control of society. Others have been driven by pressure from below and have been progressive.
Sujatha Fernandes, an observer of the constitutional struggles in Venezuela and Bolivia, has noted: “The act of rewriting the constitution is certainly not a new phenomemnon. Latin American countries have been through many constitutions and reforms of the constitution. But rewriting the constitution has taken on special significance across Latin America during this moment as the bearer of hopes for a changed social and political order ((Democracy and Constitutional Reform, 6 June 2007)”. Since the early 1990s grassroots people in a number of Latin American countries have demanded constituent assemblies.
Constitutional changes, as opposed to just electing a new government, do offer the possibility of profound change, which has been motivation of grassroots people in Latin America. A comparison could be made to New Zealanders voting for MMP in 1993. This was a constitutional change to the political process which was driven by mass distrust of politicians and the political system.
The focus of Chavez’s 1998 presidential campaign was to write a new Venezuelan constitution. It was the wave of support for this idea that swept Chavez to power. His first decree as president was to call a referendum asking the people if they wanted to hold national elections for a Constituent Assembly. 92% of voters said yes.
In 1999 the people elected 131 representatives to Venezuela’s Constituent Assembly. The assembly was charged with drafting the new constitution. Successful candidates came mostly from Chavez’s own party, and included many people with long records of advocating for human rights.
The work of drafting the new constitution was largely done through 22 commissions focusing on different aspects of the constitution. The commissions actively sought the input of grassroots organisations and social movements.
The finalised draft was agreed by the Constituent Assembly and presented to the people of Venezuela in a national referendum. In December 1999 the Constitution of the Bolivarian Republic of Venezuela was ratified by 71% of voters.
The constitution emphasises values of “liberty, independence, peace, solidarity, the common good, democracy”. It challenges the neo-liberal basis for the attacks on grassroots people that had marked Venezuelan politics in the 80s and 90s.
“Many of the progressive changes incorporated into the new [Venezuelan] constitution”, writes Fernandes, “reflected struggles that had been waged for several decades by a range of social movements. These included self-management, citizen participation, and the principle of co-responsibility”. (Democracy and Constitutional Reform, 6 June 2007)
The constitution enshrines free quality healthcare and free education as human rights guaranteed to all. It also makes provision for models of “participatory democracy”.
Indigenous people help write the constitution
Three seats on the Constituent Assembly were reserved for indigenous leaders who took responsibility for leading discussions on what rights for indigenous people should be written into the constitution. The Venezuelan National Indian Council (CONIVE) lent its support and was deeply involved in writing the draft.
In the Explanation of Motives for the Bolivarian Constitution of Venezuela, a preamble to the Chapters and Articles of the constitution, it says that the Chapter on indigenous rights “gives wide recognition to the existence of the indigenous peoples, their organisational forms, cultures and their own languages, as well as their habitats and ancestral rights to the lands which they have traditionally occupied and which are indispensable in guaranteeing their biological and sociocultural continuity, lands which also carry a sacred status. All of this implies a profound change in the political and juridicial perspective governing the country.”
The preamble goes on to say: “indigenous lands are inalienable, cannot be sold and non-transferable and it is up to the State jointly with indigenous peoples to demarcate said lands.” And “indigenous peoples have the right to maintain and promote their economic practices, and, as a result, no development plans and projects alien to their interests and needs will be imposed.”
To get an idea of the gains made by indigenous peoples through the writing of the new constitution its worth presenting Chapter VIII: On the Rights of the Indigenous Peoples in full:
Article 119: The State recognizes the existence of indigenous peoples and communities, their social, political and economic organization, their cultures, practices and customs, languages and religions, as well as their habitat and original rights to the lands they ancestrally and traditionally occupy, and which are necessary to develop and guarantee their way of life. It shall be the responsibility of the National Executive, with the participation of the native peoples, to demarcate and guarantee the right to collective ownership of their lands, which shall be inalienable, not subject to the law of limitations and nontransferable, in accordance with this Constitution and the law.
Article 120: Exploitation by the State of the natural resources in indigenous habitats shall be carried out without harming the cultural, social and economic integrity of such habitats, and likewise subject to prior information and consultation with the indigenous communities concerned. Profits from such exploitation by the indigenous peoples are subject to the Constitution and the law.
Article 121: Indigenous peoples have the right to maintain and develop their ethnic and cultural entity, world view, values, spirituality and sacred places of worship. The State shall promote the appreciation and dissemination of the cultural manifestations of the indigenous peoples, who have the right to their own education, and an education system of an intercultural and bilingual nature, taking into account their special social and cultural characteristics, values and traditions.
Article 122: Indigenous peoples have the right to a full health system that takes into consideration their practices and cultures. The State shall recognize their traditional medicine and supplementary forms of therapy, subject to principles of bioethics.
Article 123: Indigenous peoples have the right to maintain and promote their own economic practices based on reciprocity, solidarity and exchange; their traditional productive activities and their participation in the national economy, and to define their priorities. Indigenous peoples have the right to professional training services and to participate in the preparation, implementation and management of specific training programs and technical and financial assistance services to strengthen their economic activities within the framework of sustainable local development. The State shall guarantee to workers belonging to indigenous peoples the enjoyment of the rights granted under labour legislation.
Article 124: Collective intellectual property rights in the knowledge, technologies and innovations of indigenous peoples are guaranteed and protected. Any activity relating to genetic resources and the knowledge associated with the same, shall pursue collective benefits. The registry of patents on this ancestral knowledge and these resources is prohibited.
Article 125: Indigenous peoples have the right to participate in politics. The State shall guarantee indigenous representation in the National Assembly and the deliberating organs of federal and local entities with an indigenous population, in accordance with law.
Article 126: Indigenous peoples, as cultures with ancestral roots, are part of the Nation, the State and the Venezuelan people, which is one, sovereign and indivisible. In accordance with this Constitution, they have the duty of safeguarding the integrity and sovereignty of the nation.
Venezuela’s 1999 constitution marked the first time that the country’s history of racism and oppression has been addressed in any meaningful way. The self organisation of indigenous people, connected to widespread grassroots anger directed at Venezuela’s corrupt elites, gave Chavez and people around him the political direction and confidence to promote these positive changes in the rights of indigenous people.
In turn, the leadership given by Chavez, combined with the fully democratic process which entrusted people to participate and then collectively vote on a new constitution, meant that grassroots people identified strongly with the entire content of the constitution, including the significant rights granted to Venezuela’s “first peoples”.
The writing of the new constitution had an uplifting affect on grassroots struggles. Ordinary Venezuela’s carried around with them copies of the constitution, which were printed in their millions.
The 1999 constitution became a “weapon” in the hands of the people. It was invoked in community and local struggles against corrupt members of the bureaucracy, landlords and business bosses opposed to the new rights granted to grassroots Venezuelans.
Identification with the constitution has been strong among indigenous people. Carolina Penaranda, a student in Toromo who belongs to the Jukpa tribe, expresses a common attitude: “We the indigenous people were not taken into account before. Today with this government we are in the constitution and have that to defend us”.
Indigenous people and communal power
The 1999 constitution was just the start of the process of changing Venezuelan society, what followed has deepened those advances, and begun to expand the concepts of solidarity, equality and democracy.
A key mechanism for encouraging people to participate and drive the transformation of Venezuela was the social missions introduced by the Chavez government in 2003. The missions channeled the oil revenue of the fully nationalised state oil company (PDVSA) into health, education and welfare programmes for poor Venezuelans. The missions, mainly run by volunteers or “Chavistas”, established a direct link between the Chavez government and the people, by-passing the old corrupt bureaucratic structures of the Venezuelan state.
Mission Guaicaipuro was named after a 16th century indigenous leader who resisted Spanish colonial forces. The aim of Mission Guaicaipuro has been to ensure the indigenous rights written down in the 1999 constitution become a reality. Securing collective indigenous land titles was a priority, as well as mobilising to defend the rights and resources of indigenous people from corporate exploitation. The Mission Guaicaipuro has also had the task of making sure the benefits of the other social missions reached indigenous and peasant communities.
Under the 1999 constitution idle and uncultivated land could be taken over and used productively for social benefit. Through the Mission Guaicaipuro, working with other indigenous organisations, and often alongside non-indigenous small farmers, large monopoly farms have been broken up and redistributed to landless people. This has been an important step towards Venezuela achieving food security through independent localised food production.
As important as the missions have been the really significant advances came with the passing of the Communal Council Law in April 2006. The law was consistent with the 1999 constitution but significantly built on it. The law says the Communal Councils will “represent the means through which the organised masses can take over the direct administration of policies and projects that are created in response to the needs and aspirations of the communities, in the construction of a fair and just society”. Like the missions, the Communal Councils are directly funded from nationalised oil revenues.
What’s important about the Communal Councils is that sovereignty is being shifted to grassroots communities, to local inhabitants in cities, towns and rural areas. They’re different from city, district and regional councils in NZ in that they’re based on principles of participatory democracy. Everyone in the community (between 200 and 400 families) can take part in decisions over the allocation of resources and other decisions affecting people in the community. Individuals elected to positions of responsibility are recallable. Regular open assemblies of the whole community are the highest decision making forums. Today over 18,000 Communal Councils exist across Venezuela.
The Communal Councils have started to shift the centre of sovereignty from the government executive to the people themselves. Unsurprisingly indigenous people in Venezuela have been quick to grasp their potential. In late 2007 the number of Indigenous Communal Councils had reached 800.
The struggle in Venezuela continues
To deepen the transformation of Venezuelan society and its power relationships, Chavez in 2007 called for an “explosion of communal power”. That announcement was later accompanied by Chavez’s proposal for a “socialist constitution of Venezuela”, which would involve specific reforms to the 1999 constitution.
The proposed reforms would have given more power and autonomy to the Communal Councils. The reforms, unfortunately, were narrowly defeated in a nationwide referendum earlier this year. This defeat, characterised by activists in Venezuela, as a temporary set back, was largely the result of an extensive disinformation campaign organised by corporate and political elites in Venezuela and internationally.
The struggle in Venezuela continues, and today power hangs in the balance. The contest is between the old forces of domination who are fighting to defend a society where power is concentrated in the hands of the wealthy classes and a vision of society which is democratic, equitable and just. The final outcome cannot be known, but what’s been achieved so far is of profound importance to the struggle by all peoples for sovereignty and equality.
The rights of indigenous peoples in Venezuela are being protected and advanced within a constitutional framework that encourages the decentralisation of power through concrete mechanisms: the missions, Communal Councils and workplace committees. Greater indigenous autonomy exists within the framework of greater autonomy for all. In this context there’s no question of “special treatment” for one group or another.
There’s a long way to go, in terms of winning the ideas and also implementing and securing the decentralisation of power in practice, but events are moving in a positive direction.
What’s happening in Venezuela is inspiring indigenous people around the world. From 2003 onwards Venezuela has played host to an annual International Encounter of Resistance and Solidarity of Indigenous and Peasant Peoples. Maori leaders and activists should seriously look at attending this international meeting of indigenous minds to learn first hand from people who are part of the revolutionary process transforming Venezuelan society.
That transformation is seeing new ideas about sovereignty emerge which are empowering indigenous peoples. Are there lessons for Maori and other grassroots people in Aotearoa?
The New Zealand state: the centralised operation of power
Since the signing of the Treaty of Waitangi in 1840 the British Empire and then the independent British colony of NZ, and finally the modern nation state, have sought to establish a centralised authority. This authority as had an evolving constitutional basis, as written into the “laws of the land”, but force has remained the final protector of that sovereignty.
Force has been used to crush the armed resistance of Maori defending their land, just as it’s been used to break workers’ strikes. The forces of the state have been used to assert particular interests – which is the model of capitalist production and private property that’s been the dominant economic force throughout the world since the mid-19th century. At the heart of the system is an oppressive relationship between those who control wealth and resources and those who don’t.
It was the global development of capitalism which led to the fully realised nation state as we experience it today, where political, legal and military power is centralised. Any society based on unequal access to wealth and resources must construct a model of state power that works to preserve the rule of the dominating class against those who would resist. History from Babylon, Rome to Washington shows us that this is the case. Maori know this only too well – the racist targeting of the small community of Ruatoki a recent reminder.
As no society can hold together long through force alone, gaining compliance and acceptance of structural inequalities through laws, institutions and ideas is vital. The nation state of NZ must achieve some kind of constitutional authority in the eyes of masses of people. How it does this is an ongoing issue for the elite classes, who must constantly win the “battle of ideas” in response to constantly changing circumstances.
The changing place of the Treaty
mass movement of Maori demanding justice and their rights in
the latter part of the 20th century was a problem for this
country’s rulers. One of the questions the movement was
asking was: what is the place of the Treaty of Waitangi in
NZ? Was it a “fraud”, as one slogan used by Maori
activists from the 1970s claimed, or could Maori put
collective pressure on the NZ state to “honour the
NZ’s elite classes would have preferred the Treaty be consigned to the dustbin of history. The parliament of 1877, made up of European businessmen, had dismissed the Treaty of Waitangi as a “simple nullity”. A position it held for nearly one hundred years.
Faced with an escalating and well supported movement of Maori demanding justice, NZ’s elites had a decision to make. Simply ignore the demands of Maori and risk an intensification of protest that would destabilise the nation state, or seek to absorb and appease the anger of Maori. With some political differences between the major players, it was the latter strategy that became the preferred option. This has enabled Maori to achieve some gains within the political and social framework of NZ society.
Obviously the Treaty of Waitangi could not now be ignored. While the Treaty itself has never been passed into law, and so does not have any legal status itself, the “principle of partnership” between Maori and the Crown has been defined through Acts of parliament and court rulings since the 1970s. It was this “principle of partnership” that a Privy Council ruling in 1994 claimed was most important, not the precise wording of the original treaty. A new constitutional framework emerged whereby the state was bound to “consult” with Maori on most decisions of government, and the state must seek to redress past breaches of the Treaty.
From being a “simple nullity” the Treaty is now referenced in a number of major Acts of parliament (including the Treaty of Waitangi Act 1975, Constitution Act 1986, State Sector Act 1988, New Zealand Bill of Rights Act 1990, and Resource Management Act 1991). The Treaty went from being completely outside of NZ’s constitutional framework to being referred to by many Maori and the government as this country’s “founding document”. This was a major political shift.
A one-sided partnership
However, for Maori remotely involved in treaty settlement negotiations or just dealing with various government institutions at a national or local level it’s been obvious that what existed on paper didn’t square with reality. The partnership between the Crown and Maori has been one-sided.
Combined with the devastating impact of neo-liberal policies on working class Maori post-1984, there’s been lots of scepticism among Maori as to whether the NZ state is really a good “Treaty partner”.
The fact is, the state controls the process of consultation. It may look like the consultation process descends from the highest peaks of government down to the local city council or government department office, but the centralised sovereign power of the state descends each step of the way. The prime minister, government department or city council can listen or not as they see fit.
In 2002 the government, though the Corrections Department, consulted local Maori about building a prison at Ngawha near Kaikohe in Northland, but were selective as to who they consulted with. They ignored the majority of Maori who opposed a prison being built on a significant cultural site. Examples like this are numerous.
Despite the Treaty being “hot-wired” into the constitution, ultimate sovereignty has remained with the state. Dr Rawiri Taonui has summarised the situation like this: “while the Treaty does afford Maori some protection, for the most part the Crown unilaterally decides Treaty policy.” (‘Unburdening future generations’, NZ Herald, 8 October 2007)
The problem for Maori is that the “principle of partnership” conflicts with the logic of capitalist development and expansion which the NZ state is designed to protect. It’s this reality that shattered the illusion of partnership between the Crown and Maori in 2003.
Foreshore and seabed tussle shatters the illusion
That year, the Labour government moved quickly to pass legislation stopping Maori claims to the resources of the foreshore and seabed being contested in the courts. Maori called it a 21st century confiscation. The decision set off a shockwave which has transformed the political and constitutional framework of this country.
The original Court of Appeal ruling that Maori claims to customary foreshore title could go to the Maori Land Court was a threat to the state’s power to control and allocate the country’s resources however it likes. Big business, the main benefactors of this resource allocation, threw their considerable weight into the debate, pressuring the government to bar any possibility of Maori claiming rights to the seabed and foreshore.
What was at stake was not “protecting” access to the beach on the weekend but the sovereign right of the state to allocate the resources of the country to private corporations. The truth of this soon became apparent. In 2005 the government moved to grant licences to mine the ironsands stretching from Wanganui to the Kaipara Harbour, against the wishes of Maori, environmentalists and communities. In the same year Crown Minerals allowed Seafield Resources Ltd to conduct gold exploration of the seabed off the west coast of the South Island. And the government has been busy mapping and exploring the ocean depths for income generating resources which it can flick on to national and international companies.
As Maria Bargh from Victoria University has said: “It is difficult to imagine how creating a system to exploit the foreshore and seabed for monetary gain, including increasing mining of the foreshore and seabed (activity which is generally destructive of the environment and of eco-systems), might contribute to a concept of “protection”. It is clear from these projects that the exploitation of the foreshore and seabed in this way is not a random and unexpected development but rather part of a broader agenda of privatization, commercialization, and extension of the market mechanism, consistent with policies which the Government has pursued for some time and which played a key role in its unwavering intention to legislate.”
The capitalist state of NZ – through its loyal servants Clark, Cullen & Co – was compelled to act in the way that it did when sovereignty was threatened by legal interpretations of Maori rights under the Treaty.
According to Maori activist and lawyer, Moana Jackson, Labour’s complex legislation entrenched a “redefinition of tino rangatiratanga as little more than an ability to exercise a quasi-management role in areas which it chooses… At best Maori will be consulted on foreshore issues but the decisions will be made by others, just as Maori were consulted on the policy but a decision has now been made that ignores what was said”. (NZ Herald, 19 December 2003)
Maori anger fused into a collective mood of determination to protest the government’s confiscation, leading to the impressive hikoi that shook the political elites in Wellington. From which the Maori Party was formed, quickly establishing itself as a major political force.
Following the foreshore and seabed debacle came Don Brash’s “race speech” at Orewa in early 2004. Brash accused the government of granting “special privileges” to Maori and argued that “race-based funding” should stop. Brash hoped to create divisions amongst working class New Zealanders by encouraging a backlash against Maori, which he hoped he could ride to power in the 2005 election.
Labour reacted to this political danger by moving away from Treaty-based policies which had been the bedrock of the relationship built up over many years between Maori and the Labour Party. The decision not to vote for the UN declaration on the rights of indigenous people confirmed this policy direction.
Still, the collective spirit and resolve of Maori cannot be ignored. Labour politicians cannot escape this truth. The “Treelords” deal worth $500 million is a calculated attempt by Labour’s leaders to appease Maori anger in election year. The size of the deal, however, has set an important precedent. Other iwi and hapu will now push for similar sized settlements in the years ahead. Treaty settlements will therefore remain an important front in the struggle of flaxroots Maori to achieve justice.
A new “constitution for the 21st century”?
The “Treelords” deal won’t fully cover over the rupture that’s occurred between Maori and the Labour Party as a result of the seabed and foreshore confiscation. And because both Labour and National have backed away from the Treaty as NZ’s “founding document”, Maori have been forced to look very closely at the constitution and the place of the Treaty of Waitangi.
Maria Bargh has drawn the conclusion that “the inadequacy in our constitutional arrangements requires a change in approach – a new game plan: constitutional change.”
The idea of “constitutional change” is something that the Maori Party has also been raising repeatedly in press releases, speeches and policy papers.
Both Labour and National on the other hand, while essentially agreeing that the continued incorporation of the Treaty into NZ’s constitutional framework was over – and in fact would be actively undermined – have been reluctant to talk too much about constitutional issues.
A forgotten part of Brash’s “Orewa speech” was his call for a new “constitution for the 21st century”. John Key and the National Party today haven’t pushed on with this idea. Why not?
They understand that any call for a new “constitutional of the 21st century” promoted by National could set off a mass constitutional debate involving parties across the political spectrum. This would spread the debate outwards to all people in NZ. At present the constitutional debate is happening, in the media, within political parties and other organisations, but it’s very much at the edges of mainstream political debate – where National wants it to stay.
A mass constitutional debate would raise all sorts of thorny issues for the elites of this country who’ve steamrolled a neo-liberal corporate agenda through NZ society, affecting everyone and every private and public institution, from electricity companies to kindergartens, from hospitals to art galleries.
Any mass debate on the subject of NZ’s constitution could quickly undermine the neo-liberal consensus that National and Labour politicians have worked so hard to hardwire into the structures of NZ society in the face of majority opposition.
So while there’s constitutional uncertainty the ruling elites are wary of endorsing a process which they might not be able to control. Politicians and business leaders know there’s anger amongst grassroots people, who feel disenfranchised and alienated from decision making, and who are battling to maintain a decent living standard. While constitutional uncertainty is worrying for the country’s elites – and there’s disagreement over what to do about it – for grassroots people there’s an opportunity to grasp.
Maori, Pakeha, Pacific Island peoples, Indians, Chinese – all people of different ethnicities living in this country – share common beliefs when it comes to basic human rights, fairness and equality. We would all have a lot to gain from a mass constitutional debate which puts those shared values front and centre.
In a speech in 2005, Maori Party co-leader Tariana Turia said that central to the growth and maturing of this country was “the opportunity for comprehensive discussion led by the citizens of Aotearoa” on the Treaty of Waitangi and the constitution. “New Zealanders”, she said, “have had enough of government-led inquires.”
Replacing an ad-hoc, contradictory, and “top down” constitutional framework with a holistic, equitable, democratic, grassroots driven constitution is something that Maori and non-Maori can be thinking about. The constitutional struggles in Venezuela, while unique to that country and untranslatable directly to any other, offers us a practical model to study and consider.
The decentralisation of sovereignty: for people and planet
All people currently living in NZ experience the law and the powers of the state as something alien and beyond their control. It’s the idea that laws and power always presses down on people which is being challenged in Venezuela today. The struggle is freeing peoples’ minds as much as anything, to think of sovereignty and the law as something that truly rests with the people.
In Venezuela the re-founding of the constitution has been a popular process mobilising the majority of the population. Key to this has been a new constitution which has explicitly challenged neo-liberal policies and corporate control of society.
Most importantly, the decentralisation of power that’s being pursued through the Communal Councils and other grassroots democratic organisations is a model of sovereignty that’s empowering to local communities, both indigenous and non-indigenous. Such a model of mass participatory democracy offers a possible solution to reconciling kawanatanga and rangatiratanga for Maori and other grassroots people in Aotearoa. Devolving power downwards brings sovereignty to everyone.
This is crucial in another way. The sovereignty that indigenous people are demanding around the world fits with a system of localised food and energy production controlled “by people for the people” that the best ecologists are advocating as a solution to climate change. Localised organic food systems combined with local energy production (solar power, wind turbines and other sustainable technologies) would slash the greenhouse gas emissions produced by centralised industrial food and energy production. Resources in the hands of people and managed democratically through “collective assemblies” would shift power away from the combined forces of the state and the market which have taken the planet to the brink of environmental catastrophe.
Important mobilising synergies are therefore possible between the struggle for tino rangatiratanga and ecological sanity. Indigenous and environmental struggles demanding sovereignty for grassroots communities is part of a global struggle to save people and planet.
Such an orientation would empower flaxroots Maori who are often at odds with a new class of Maori corporate warriors who want to use land and resources to generate “export dollars” and “expense accounts”.
Maori activist and lawyer Annette Sykes believes the Treelords deal is underpinned by a “corporate model of management” which won’t see benefits flow to all Maori equally. She asks whether this model will “respect all rangatira in the tribal community, women and children alike, and ensure an active participation by those affected by decision making processes around land use and benefit distribution?” (‘The Sovereignty Debate? Has it been silenced?’, 29 June 2008)
Sykes believes Central North Island iwi are at a “crossroads in their journey to protect their sovereignty and self-determination”. While there’s a very real danger of corporate capture, Treaty settlements like the Treelords deal could also be an opportunity for flaxroots Maori to assert their rangatiratanga.
Maori managing resources collectively and sustainably for the benefit of people equally would be a serious challenge to the dominance of the market. The impact of which could spread out to other communities in Aotearoa.
A grassroots re-founding of the constitution of Aotearoa
The struggle by millions of grassroots people in Venezuela has launched into the world new ways of thinking about sovereignty. The Communal Councils, enthusiastically embraced by indigenous peoples in Venezuela and thousands of other grassroots communities, are a model of participatory democracy that’s proving inspiring to indigenous and non-indigenous people around the world.
And what the Venezuelan experience also shows us, is that the struggle for greater democracy and sovereignty has to be linked to a collective struggle against corporate power. Only this twin strategy can mobilise masses of people to bring about real change.
NZ’s constitution is currently a hodge podge of different Acts and legal rulings that aren’t part of the mass consciousness of New Zealanders. Constitutional uncertainty, combined with grassroots anger among people of all races, mass mistrust of politicians, looming environmental and economic crisis, is opening up space for a collective struggle to reshape the constitution of this country.
No re-founding of the constitution can happen without the mass participation of all grassroots people, and no fair and equitable constitution can be achieved in Aotearoa without the agreement of tangata whenua. Te Tiriti o Waitangi, as this country’s first constitutional document, would need to be an important pillar of any new constitution. But the Treaty can only rise to its true status and achieve mass buy-in if it’s part of a much wider re-founding of the constitution based on principles of humanity, ecology, co-operation, equity and democracy.
Changing the constitution will require a partnership forged “from below” between Maori and other grassroots people. Iwi and hapu working alongside unions, community organisations, environmental groups, and grassroots political parties could ignite a movement that challenges the centralised model of power that NZ’s rulers are determined to hang on to.
Political elites have been playing around with constitution for over 160 years – it’s time for the people to have a go.