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April 8, 2013 | by  | in Features |
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Constitutional Transformation

New ZealaNd’s CoNstitutioN is CurreNtly uNder review: sHould we Be a rePuBliC? do we waNt us style suPreMe laws? wHat is stv? tHese questioNs doMiNate tHe disCourse But PusH out More PressiNg Matters. Maori, wHo Have BeeN HistoriCally eitHer ForgotteN or aCtively oPPressed, sHould Be aN iMPortaNt grouP iN aNy CoNstitutioNal CHaNge. MoaNa JaCksoN, a ProMiNeNt New ZealaNd aCadeMiC oN Maori aNd tHe law, disCussed His visioN For a CoNstitutioN witH Salient. MuFFiNs were served.


IN LIGHT OF THE UPCOMING CONSTITUTIONAL DEBATE SERIES, WHAT IS YOUR VISION FOR A NEW ZEALAND CONSTITUTION?

Three years ago at a national hui of nearly 2000 Maori people, it was decided to revisit the work done in the mid 1990s to discuss constitutional issues. A working group was set up. I had been appointed co-chair. I think the terms of reference of that group give a sense of the starting point from which Māori are coming, from which is quite different than that of the crown. Part of the crown task is to see whether the Treaty of Waitangi can fit within the existing constitutional arrangements. The brief given to us is to see how we can fit a constitution within the Treaty of Waitangi.

A constitution is really just the way in which people to choose to make rules to govern themselves. But if those rules are to have any value them they must be based on a set of values. What are the things we would like to preserve; what are the things that are worth protecting? So for me, a legitimate constitution is one that comes from the land of the people it is there to serve and it enables people to live well together.

YOU HAVE WRITTEN ABOUT THE BOLIVIAN CONSTITUTION. DO YOU AGREE THAT THERE ARE LESSONS THAT CAN BE LEARNT FROM THE ENVIRONMENTAL BASIS ON WHICH IT
OPERATES?

I don’t think that it is transplantable here. Just as I don’t think the Westminster system is. But I do like the fact that it is values-based, and that those values reside in the land and caring for the land. They acknowledge what they call the sacredness of the individual. They position the individual always within a wider collective. What has become clear in the hui we have had around the country is that there is a similar desire among Māori people, and I would guess among many Pākehā people. If you recognize the sacredness of every individual, and position that individual within whatever social or community group they belong to, then you have a values base on which good law will be made. If you focus on the individual, then the debate about gay marriage would not be a debate. The moral base on which Māori viewed gay relationships was not one of good and evil or sin or purity, it was based on whakapapa and cherishing the sacredness of people. So if the relationship was a respectful, loving, caring one then it was all right. There was no issue.

Now if you extrapolate that from beyond the debate about gay marriage, and you have a constitutional system, which similarly respects that preciousness then I believe you will get better law.

It is that issue that our people are really keen to talk about.

ALTHOUGH IT SEEMS VERY COMPELLING TO HAVE A VALUES-BASED CONSTITUTION, IN NEW ZEALAND WHERE WE HAVE SO MANY CULTURES AND BELIEFS THAT PEOPLE
SUBJECTIVELY HOLD IT WOULD BE VERY DIFFICULT TO REACH AGREEMENT AS TO WHAT THOSE VALUES SHOULD BE?

I’m not sure that that is true. I think there is a set of fairly common shared values: most people want to do their best by their kids; most
people want to love and be loved; most people actually do care about what they now call the environment. The trick is not getting agreement
on the values. The trick is how you give effect to them in a constitutional sense.

YOU HAVE WRITTEN ABOUT SELF-GOVERNANCE FOR MĀORI: HOW WOULD yOU SEE THAT SELF-GOVERNANCE OPERATING IN NEW ZEALAND?

You have jumped straight to the system rather than the values. You are asking how it would work, where I begin with the values and the values are clearly sourced within the Treaty.

The values base for me is to go back to what was actually agreed in 1840, and what was not agreed was that you can come from somewhere else and govern us. And part of the debate we are about to have in this country is not whether grievances should be settled, but whether the overarching grievance of colonisation can be settled. And underpinning all the discussions in all the hui we have had, the debate always comes back to the values and Te Tiriti, and they are inseparable. I am not suggesting that that debate will be short or easy, but until we have that debate we will not get to the point of determining the ethical values that should underpin a constitution. So how it should work is less important than what we want it to do. And my experience is that once people begin to discuss values then the model becomes easy.

THE WAY IN WHICH THE MODERN JUDICIARY HAS INTERPRETED THE TREATY, IN SAY THE LANDS CASE, HAS BEEN TO INVENT CERTAIN PRINCIPLES RATHER THAN TREATING THE TREATY AS A MORE PURE CONTRACTUAL AGREEMENT. DO YOU SUPPORT THAT APPROACH?

It’s rather like taking the Magna Carta and inventing a set of Magna Carta principles rather than looking at what it actually says.

I GUESS THE JUDGES HAVE HAD TO DEAL WITH THESE PERCEIVED INTRACTABLE DISPUTES BETWEEN PAKEHA AND MAORI AS TO WHAT IT MEANS. DO yOU THINK THAT WAS A BAD MOVE AND THEY SHOULD JUST LOOK TO THE MAORI INTERPRETATION?

I think the principles have been unhelpful. I am always reminded of Sir James Henare. When the principles were first discussed he said at the time:

“Our ancestors did not sign a set of principles. They signed words. The mana is in the words.”

I have difficulty with what has happened to the relationship because of the principles. I don’t want to deny that there have been really quite
profound changes in this country in the last 30 years in terms of the Treaty relationship but we are not there yet. I just prefer we celebrate the
good things but know we are not at the end of the journey yet.

THERE ARE SOME PRETTY DAMNING STATISTICS WITH REGARDS TO MĀORI AND THEIR UNDER-REPRESENTATION AT THE BALLOT BOX, AND THEN THEIR OVER-REPRESENTATION IN PRISONS. DO YOU THINK THE CURRENT WAY WE CONSIDER THE CONSTITUTION AND OUR PERSPECTIVE OF THE CRIMINAL JUSTICE SYSTEM WHICH FOCUSSES ON THE INDIVIDUAL, PLAY A ROLE IN THOSE STATISTICS?

Yes.

We have an aphorism in Māori: “you cannot understand the present without understanding the past.” And so you cannot understand, say, a young man in prison without knowing what has shaped him. the prison figures are the same for any indigenous people. That suggests either that indigenous people must be inherently more criminogenic or there is something in the shared history of those indigenous people that has had an effect. The commonality is the dispossession of those people by colonisation, which is historically, culturally, emotionally a traumatic process. All the Maori I know in prison, and some have done really unacceptable things, but something has happened to all of them that led them to do all those things. The commonality is the trauma and its various manifestations of dispossession. The way in which the criminal justice system functions is part of that trauma. The resolution on the prison population won’t be achieved unless we look to those broader affects. if Māori had not been dispossessed in all sorts of ways then there would not be as many Māori in prison. I actually think that is an uncontestable argument.

ARE THE POLICE RESPONSIBLE? I WAS ONCE TOLD THAT SOMETHING LIKE 20 PER CENT OF MARIJUANA CONSUMPTION IS BY MĀORI BUT SOMETHING LIKE 60 PER CENT OF
THOSE CAUGHT ARE MAORI.

I often tell a true story here.

A young Māori boy and his Pākehā mate have a few drinks and were then staggering home. They had a few small cartons of Steinlager and one of the boys tripped and the bottles fell and broke. They tried to clean it up. A police car came along. He exercised his discretion to arrest. The police then exercised discretion to prosecute. They charge the Pākehā boy with depositing litter. They charged the Māori boy with possession of a dangerous weapon. It’s illustrative of that biased use of discretion.

IF YOU WERE A STUDENT AND WANTED TO GET INVOLVED IN SHAPING NEW ZEALAND’S CONSTITUTION AND DISCUSS THE WAY MAORI PLAY A ROLE IN NEW ZEALAND’S CONSTITUTION. WHAT WOULD YOU DO?

I think it is really important that they start from the point that there is always more than one side of a story and they are open enough to listen to each side. They may not agree or like some of the sides but unless we listen to each other then we can’t have any sort of relationship let alone a Treaty relationship.

I think we are at a similar point now in the constitutional debate that we were in the 1980s with the treaty debate. The only solution I can
see is that we just have to keep talking and try to show people that just because something is there now, that doesn’t mean that it is fair.

But change does not come without dialogue. Our view is that this change won’t occur overnight. But we wouldn’t even be having a constitutional discussion if, 30 years back, there hadn’t been a tentative, nervous, even angry sometimes, attempt to have a discussion about the Treaty. It will happen, and what I am hoping will come out of this current debate is that a starting point will be established.

That little baby there is my first great grandchild and she will live to see it. I may not, but the New Zealand she will inhabit as a young woman will be as different from today as today is from 1980. The challenge in those sorts of changes is to get it right. You make mistakes along the way, but if we can find common ground in the values then we will get it right.

In 1980 it was unrealistic to think that a little Pakeha boy would learn a little about how to say his Māori friend’s name properly. Reality
changes. I ask our people just to imagine what might be and then see what happens.

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