Aboriginal Law Bulletin
Book Review - A Question of Honour? Labour and the Treaty 1984-1989
by Jane Kelsey
Allen & Unwin, Wellington, New Zealand, 1990, pp.270.
Reviewed by Annie Mikaere

Throughout the recent election campaign, the New Zealand Labour Government maintained that it had made difficult but necessary economic decisions which would ultimately benefit the country. It also insisted that it had done more than any other government to honour the Treaty of Waitangi. Although Labour has since suffered electoral defeat, Kelsey's careful study of these two areas of Government policy between 1984 and 1989 is still as relevant as it was prior to the election. As the book well illustrates, whichever political party happens to be in power and whatever stance it takes on Treaty issues, the result will essentially be the same for the indigenous people of Aotearoa. The relationship between coloniser and colonised will not, indeed, cannot undergo any fundamental change within the present political system.

When it took office in 1984, Labour reaffirmed its intention to honour the Treaty of Waitangi and promised to extend the Waitangi Tribunal's jurisdiction back to 1840. (This Tribunal is a statutory body, created in 1975, which considers and makes recommendations on Maori grievances against the Crown.) It became apparent that the government was also committed to restructuring the economy in line with various overseas developments and the proposals of the then Minister of Finance, Roger Douglas. `Rogernomics', included the corporatisation of government trading activities and the privatisation of state assets.

Given that both privatisation and corporatisation involved the transfer of Crown assets out of Crown ownership, and that the overwhelming majority of claims before the Waitangi Tribunal involved Crown land, it seemed inevitable that these two Government policies would collide. It is surprising that Labour did not make the connection, at least during its first two years in office. Rather less surprising was its failure to grasp the essence of what a policy of honouring the Treaty could mean in terms of meeting Maori expectations. The guarantee of Tino Rangatiratanga in the Maori text of the Treaty, gave rise to difficult questions about Mana Maori (self-determination) and struck at the heart of constitutional arrangements which had been unquestioningly accepted as legitimate by Pakeha for well over a century.

The book describes three phases in Labour's handling of the problems which arose. The first is between l984-1986, before the enormity of the difficulties posed by these policies dawned on the government. The second occurred in 1987, when conflicts between `Rogernomics' and the Crown's Treaty policy resulted in it being catapulted into a period of "ad hoc crisis control" (at p.23) as the government tried to appear to live up to Treaty promises while minimising damage to the restructuring program. The final stage was in 1988-1989, by which time the Crown was beginning to consciously develop a strategy whereby Treaty-based claims could be controlled and brought into line with its economic policy.

The government's most useful tool turned out to be In a phrase, somewhat innocently included in the statute, which had established the Waitangi Tribunal, "the principles of the Treaty of Waitangi" (see Treaty of Waitangi Act 1975, s.6). Later included in the State-Owned Enterprises Act 1986 (see s.9), the principles of the Treaty came to be interpreted by the Court of Appeal when Maori challenged the legality of the Crown's proposed transfer of assets to State-owned Enterprises (New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641). The Court's interpretation of the principles bore no resemblance to the Maori text of the Treaty, ensuring that Tino Rangatiratanga was subsumed beneath the sovereignty ceded to Queen Victoria in the English text. These principles were later picked up on by the Government, judiciary and Waitangi Tribunal alike to deny arguments for the reassertion of Mana Maori (see also D V Williams, "Crown Action on the Treaty of Waitangi" in Aboriginal Law Bulletin [1990] AboriginalLB 15; 2(43)pg12).

The gradual evolution of Labour's Treaty policy is discussed with reference to five particular areas of Government activity: corporatisation, privatisation, fisheries, Local Government reform and resource management law reform. In respect to each of these, developments are carefully documented and analysed in a way which any reader interested in how government policy is formulated will find fascinating.

While this analysis is interesting in its own right, Kelsey points out that there is much more to the divergence between Government's economic program and Treaty rhetoric than a simple conflict in executive policies. This conflict was merely symptomatic of the fundamental contradiction between widely assumed sovereignty of the coloniser and the continued assertion of Tino Rangatiratanga by the tangata whenua (original inhabitants). For this Maori reviewer, the account of Labour's attempts to honour the Treaty in a way which left its own power intact is simply one more chapter in an ongoing story of colonisation and suppression of claims to Mana Maori being perpetrated in the name of the Pakeha Law.

The chapter on the role of law is of utmost significance. It is true that in their legal challenges to the Crown's attempted sale of land , forests, coal and fish, Maori litigants did achieve "short term tactical victories" (at p.237) in the courts. The implementation of the Government's plans were delayed while settlements with Maori were negotiated and legislated. However, it is equally clear that the courts at no time acknowledged the true nature of Treaty claims, challenging as they did the very legitimacy of the legal system. While this was an entirely predictable and indeed an essential response on the part of the judiciary, it illustrates the no-win situation in which the Maori claimants found themselves. If they failed to go to court they conceded the sovereignty of the Crown and the legitimacy of the legal system in which they were being forced to work, thus denying the essence of Tino Rangatiratanga. All that was achieved, was the re-affirmation of the Crown's supreme right to govern a setting of parameters within which, negotiations between Maori and Crown could occur. For example, that the partnership embodied in the principles of the Treaty would entitle Maori to substantially less than half of any given resource to which they established a supportable claim; see Tainui Trust Board v Attorney - General [1989] 2 NZLR 513, at 529.

A further cost of seeking the affirmation of Treaty rights through judicial procedures has been the vastly increased involvement and interest of Pakeha lawyers. While this may at first appear to be a healthy development in a bi-cultural nation, it has in practice produced a situation where Maori have been sidelined in a debate which concerns them intimately. They have been forced to hire the best Pakeha lawyers to engage in lengthy courtroom arguments, governed by rules and procedures which are foreign to Maori and entirely inappropriate to deal with the issues. The Treaty has become a legal "growth industry", both in the fields of legal practice and academic research. Kelsey writes of Pakeha lawyers who have recently developed expertise in the area:

"Almost all spoke from positions of cultural ignorance which was born not simply of a lack of exposure but also of an arrogance which defined the Treaty as a legal issue to which Maori perspectives were irrelevant" (at p.236).

In stark contrast to many of these legal experts, Kelsey always subjects her work to the careful ongoing scrutiny of Maori. This project was no exception, as was evidenced by the wide-ranging Maori support apparent at the launching of the book earlier this year. It is encouraging to find a Pakeha lawyer who does not simply write about the Treaty and Maori as matters of academic interest, but who works with Maori out of a sense of responsibility to ensure that the vital issue of Tino Rangatiratanga does not become obscured by the Treaty rhetoric of the major players in the dominant legal and political order.

This book provides an invaluable illustration of the formulation and implementation of government policy. More importantly though, it is essential reading for anyone concerned about the continued suppression of indigenous peoples in their quest for the return of the power which they never in truth surrendered, but which was simply wrested from them by any means that colonising powers could employ. While the strategies devised to ensure the maintenance of the coloniser - colonised relationship may have become more subtle over the last 150 years, this book illustrates only too clearly the "lethal impact" (at p.213) that such policies nevertheless have had on the assertion of indigenous rights.