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May 19, 2017 | by  | in Interview |
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Interview with Moana Jackson

Moana Jackson is an esteemed constitutional lawyer and he convened the working group Matike Mai Aotearoa, which released its report He Whakaaro Here Whakaumu Mo Aotearoa in 2016. The group travelled the country for four years, had 252 hui, and collected hundreds of hours of transcripts and submissions. These were synthesised into the report which calls for constitutional transformation — a process that would fundamentally shift New Zealand away from 170 years of colonisation to a society governed in accordance with Te Tiriti o Waitangi and He Whakaputanga o Nga Rangatiratanga o Niu Tireni [the 1835 Declaration of Independence]. We spoke to him about the working group and its report, as well as his vision of constitutional transformation. This interview formed the basis for the feature piece To Be Brave and Imaginative: Transforming our Constitution.

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In “Constitutional Transformation: An Interview with Moana Jackson” from Weeping Waters, published in 2010, you are quoted as saying: “One of the questions I often get asked is a simple but I think really important one, and that is ‘what is a constitution?’ People talk about constitutional change and constitutional reform, and often I think they aren’t sure of what it means or they see it only in terms of Pākehā concepts. One example is when people discuss the issue of constitutional change by advocating the establishment of a republic, because if you start discussions about constitutional issues with a republic then you are starting with just another Western European constitutional construct like the current parliamentary system. The only difference is that a republic has an elected president instead of a hereditary king or queen. I think it is really important that our people start the debate from a Māori point of view.” 

Would you say that constitutional transformation (as opposed to change or reform) is a process of decolonisation?

There’s a process that lead to me saying that. Ever since 1840 and the Treaty, Māori people have had a very clear view about how this country should be governed. Because all a constitution is, is the way in which people make decisions, and every culture has its own way of doing that — the constitutional system in England is different from the constitutional system in Russia, and so on. And our people had a really clear constitutional system before 1840, and what the Treaty allowed was for another system to come here and govern, if you like, people who came from somewhere else; but our mana, and the system designed to give effect to that was to continue, and the Treaty challenge has always been: how would those two work together?

The Waitangi Tribunal defined it recently as two spheres of influence — the Crown sphere of influence and a rangatiratanga sphere of influence. How you devise them or make them work together — that debate has been going on since 1840. And about five years ago at a big national hui — over 3,000 Māori, it was a hui about Māori development — a lot of the discussion on the first day was a reaction to certain Crown actions. So some of the old people at the end of that day said: we always seem to come together and react to what the Crown does, perhaps it’s time to restart the constitutional discussion. So they set up a constitutional working group. I wasn’t there that day, I arrived the next day and found I had been appointed [convener].

Our brief was to go and talk to our people first, and ask two very simple questions: if we could change the way the country is governed tomorrow, what would it look like based on the Treaty? And being based on the Treaty, doesn’t mean you take the Crown system which has come from England and try to incorporate the Treaty into it — you need to find a different system based on the Treaty relationship. So, someone like Sir Geoffrey begins with “how do we incorporate it into the Crown system?” Our people began from “how can we create something more in line with what the Treaty said, based upon it?” So we travelled the country for four years, we had 252 hui, we had a rangatahi group which had 70 wānanga, hundreds of hours of transcripts and submissions, and then we wrote the report released last year. So the process is important in getting to where we are today — I’m not sure who Sir Geoffrey talked to, but we talked to literally thousands of people and tried as best we could to synthesise their ideas into the report. So the quote which you read is a response to that really — republicanism is just another Western constitutional model and what our people are talking about in Treaty terms is “can we be imaginative and brave enough to think of something different based on the Treaty?” and that’s why our report talks about constitutional transformation, rather than change. It’s transforming the constitutional landscape to be based on the Treaty.

 

In an interview you had with RNZ last year you talked a little bit about that process — about going around and talking with Māori all across the country — and you said that this is not a new discussion, it’s just not framed in the words of constitution or other legal terms. There have always been discussions among Māori about power and political relations. What is the importance of the language of talking about governance and legality, whether English or te reo, in these discussions?

Bear in mind, what I said before, that every culture develops a way of governing. Human societies learn really quickly in their history that you can’t live in a power vacuum. There has to be some authority or power which makes decisions on behalf of the people; in the same way that people don’t live in a lawless society, every society develops law, ways of regulating relationships and so on.

What’s important in the Treaty-based constitutional debate is that when we use words like “legality” or whatever, we accept that we are talking about two different, culturally constructed laws. So tikanga, or Māori law, has been here for centuries, and the common law Westminster system which has been here for 170 [years]. So when I talk about constitutional transformation, I talk about a system based on the Treaty relationship which allows a kawanatanga space, but also requires that reestablishment of a rangatiratanga base. That rangatiratanga base would be based, or function within, the parameters of our law. The Westminster base would function within its traditions. The challenge, then, is how you make that work in practice. At the moment, the debate for me is just at the stage: this is something we need to talk about. In our report, we don’t spend a lot of time looking at what might be the model which comes out of all of this — a lot more of the discussion is what values, what law, would underpin it.

 

 

Later in the interview, from Weeping Waters, you suggest kawa is a starting point for constitutional transformation, and that it “is the constitution of a marae; it’s the rules that govern how people should behave on the marae.” Would you be able to elaborate kawa for people unfamiliar with the dynamics of marae or tikanga?

The kawa on the marae is just the jurisdiction of the marae. So when you go to a marae you are bound by its jurisdiction. In a broader sense, when a person from England travels to France, they are governed by the jurisdiction of France — when in Paris, they will live under French law. What happened in colonisation was that the colonisers said: if we go to another civilised country, we will accept their jurisdiction, but if we go to an “uncivilised, savage” country, like this country, then we won’t accept their jurisdiction, we will carry our own with us. That’s a fundamental breach of the Treaty; it’s in fundamental breach of centuries-old conventions. So constitutional transformation — using the Treaty as its base to re-establish the legitimacy of a Māori jurisdiction and find out ways in which that jurisdiction and the jurisdiction the Treaty gave to the Crown to look after the people who came here — how the two can be seen to function together.

 

Also in Weeping Waters, you suggest that the Bolivian constitution, adopted in 2009, is the “nearest thing in the world to a constitution that has come from an Indigenous kaupapa,” and that the process of implementation was good because Evo Morales took “time to whakawhitiwhiti kōrero in order to get the kaupapa right.” What does the Bolivian constitution offer by the way of a model, perhaps, for constitutional transformation in Aotearoa?

I’m not sure it offers a model, but it offers a really good constitutional philosophy, if you like. I don’t like comparisons, but the Westminster constitutional framework, like most Western European ones, is based on two core values: the rights of individuals, and what they call the sanctity of property rights. So their whole system is based on regulating and protecting the rights of individuals and the rights of property.

What indigenous constitutional systems tend to be based on is the rights of individuals, exercised with collective responsibilities — that is that the individual is part of a wider collective, and that collective is part of a wider relational jurisdiction, which involves relationships with the land, the waters, the sky, and so on. What the Bolivian constitution does, and it’s the first constitution in the world [to do so], it doesn’t start with individual rights and the sanctity of property — it starts with the primacy of Pachamama, that is the primacy of mother earth. So if you have a constitution starting with the primacy of the land, then that gives rise to a quite different set of values than if you have a constitution starting with the rights of individuals and property.

The lessons the Bolivian constitution can give us is that it’s possible to construct, in the 21st century, a constitutional ethos which is based on the land and relationships, and that’s what our people talked about in our hui. We refer to indicative models in our report, but they are less important than the values of our people. I guess at this stage of the debate it’s not “what will it look like in 20 years time,” but “what are the things, as people living in this country, based on the Treaty, we think are important?” And I think if you talk to most people, they’ll say the land is really important, our relationships are important, and so on. And that’s what the Treaty is about, so I think the discussion then is about that values-base, at this point — and that’s why the Bolivian constitution is so important.

 

 

Along the lines of the importance of the environment on the basis of talking about our constitution, can you give us your thoughts on the Whanganui River and Te Urewera having the same status as a legal person? Are these steps that reframe the whakapapa of relationships and maybe provide a basis for constitutional transformation?

I think those are helpful advances. The notion of the river being a legal person is not a Whanganui description, it’s a Pākehā law description. People of Whanganui, like every iwi, regard the river as part of them, as part of their whakapapa. We talk about a Te Awa Tupua, that is the ancestral river. So in Whanganui they say, Ko au te awa. Ko te awa ko au — I am the river, the river is me. What they wanted the Crown to do was to find some way in English, if you like, of capturing that idea. And the closest the Crown could come up with was that the river would have a legal personality. That doesn’t make the river a human, and our people never saw the river as human, but they did see it as part of the relational whakapapa to which we all belong. So it’s part of us. You look at a river and know it’s not a human. The notion of legal personality is the closest Pākehā legal construct to what our people say. I think that’s important to be clear on how our people see it — it’s not a legal person, it’s part of who we are.

So in the case of the Urewera, most people would say, “how did Māori get here?” And there is a waka tradition, they came on different waka, the Takitimu, and so on, but not all hapu had that tradition. And Tūhoe don’t — they say some of their ancestors came on the Mātaatua, but they are called “the children of the mist” because they have been here as long as the mist. So the Urewera — the forests, the mountains, from which the mist comes — like the river, is a part of them. And so once again they said to the Crown: you come up with something that gets you close to this. And Pākehā law has no way of saying, “I came from the mist” —we’ll give it a legal personality. That’s a long answer.

 

 

You gave a little background to Matike Mai and the process of the working group. You said that you don’t like the clear comparison, and I think it’s important to recognise that when you’re talking about a constitution as envisaged by Geoffrey Palmer and a constitutional transformation that is being discussed, you’re not envisaging two of the same thing. One thing I found very interesting, looking at Geoffrey Palmer and Andrew Butler’s book, is that it is quite prescriptive in terms of the structure of a constitution and the relationship it would have with the Treaty, while the Matike Mai report leaves a lot of room for these kinds of discussions. Can you talk a little more about the need for community discussion, as opposed to a discussion purely based on legal and expert opinion, in formulating a constitutional transformation?

When the working group was set up, among the many discussions we had was that, if you go and talk to a hui of 100 Māori people and said, “talk to us about constitutions,” we would have probably gotten blank stares, because a constitution would not rank in the top ten priorities. It would be getting a Treaty settlement, educating the kids, getting the kids to the doctor, and so on. So we talked a lot about how we are going to address that reality.

And what we reached and proved to be right, was that our people might not use the word “constitution” in their everyday conversations — I don’t think anyone does. But for most of our people, we know powerlessness. We know we have no say over how much it costs to go to the doctor. We know we have no say over what happens to our land. And those are constitutional issues. So who makes the decisions, say, to set doctors fees? That’s a constitutional decision. And that’s where the discussions always started: if we had a different constitution tomorrow — and a constitution is just about how we make decisions so we are no longer powerless — what would it look like?

That inevitably is why so much of the discussion was not prescriptive-based, not models-based, but if it’s going to be based on rangatiratanga and the Treaty, then it has to be based on these values. It has to be based on the relationships between people, the nurturing of the land, and so on. If you start from there, then the conversation goes in quite a different direction. What that eventually leads to out of these values, will come a model. If you start with a model, it becomes very hard to decide what values, because the model presupposes some values. But if you start with the values, the model will hopefully reflect those values.

One of the things that was very clear from both Māori men and women — and since the report was published we’ve continued to hold more hui and start to meet with non-Māori groups — is that there was a lot of concern about the marginalising of women in the current Westminster system. If you have a values-based system recognising the importance of relationships, then the key human relationship is not between one man and another man, it’s between a man and a woman; even allowing for our LGBT relations. And so if you’re going to have a relational base, the system has to recognise the place of women, it has to recognise the place of disabled people, and gay people, because they are all relations. And it seems to me that if we continue the discussion within that framework, then a model will arise. There are institutional ways to ensure that people are not marginalised, are not left out, that the land is protected, and so on. But our people were really clear that you don’t start at the model; you start with what the model is meant to reflect.

 

 

We’ve talked a lot about the Treaty, but another thing you have mentioned in a lot of your work is the Declaration of Independence of 1835 also being the basis of the constitution. Can you talk a little about the importance of this document and its relationship to the Treaty and how it has shaped Aotearoa’s nationhood?

The brief we were given by the national hui, reaffirmed a year later, was to have a constitution based on the Treaty and He Whakaputanga. They were seen as inseparable. And there’s a history which I will canvas briefly:

When people from somewhere else started coming here, they would not accept our jurisdiction. So our people had to find out, “who do we talk to about this?” We are rangatira, who is their rangatira. We discovered, because our people in the early 1800s were travelling overseas, that their rangatira was something called ‘“the Crown.” So from 1850, there are hundreds of letters written from here by our people, who gathered the skills of writing, to this Crown in England. And nothing happened, more people kept coming and ignoring our jurisdiction, and doing really bad things, often. One of the things a number of our people decided was, perhaps, rather than just having Ngāti Kahungunu look after things in Ngāti Kahungunu, and Ngāpuhi trying to look after Ngāpuhi, we might need to have a new way, a new constitutional way of making decisions.

So they took an idea, which was already in place in the North, called He Whakaminenga. Which was an assembly that used to meet once a year in the North, just with the hapū in the North, where they would come together to discuss matters of common interest or conflict. They would not give up their own mana in that forum, but they would come to make joint decisions. So what they said was, perhaps we could extend that and involve other iwi. And to make that statement they issued He Whakaputanga, the Declaration of Independence, which was a statement to the world that “we are an independent peoples” and, as one expression of that, iwi will continue to make independent decisions, but as another expression those iwi who wish can come together as part of He Whakaminenga and make joint decisions without giving up their own mana — sort of like a 19th century United Nations, where independent nations go to the UN, they don’t give up their independence, but they make joint decisions. So people would go to He Whakaminenga not to give up their independence but to make interdependent decisions.

So five years later when the Treaty was signed, that very short period of history, of an independent but interdependent constitutional system, was fresh in people’s minds. And the underpinning of that was the mana or the authority of each individual iwi or hapū, and that’s why the Māori story since 1840 is so at odds with the Crown’s, where the Crown say we ceded sovereignty, and our people say we never did. How can you give away our independence? Then the Waitangi Tribunal two years ago agreed in the Paparahi o Te Raki claim that Māori in fact did not cede sovereignty. And so the two documents are interrelated, they’re inseparable. Not all iwi and hapū signed He Whakaputanga, but then not all iwi and hapū signed the Treaty either. But the philosophy behind them is crucial and interrelated.

 

 

Geoffrey Palmer said he has read Matike Mai and found it to be a “very interesting report,” and they cite it in the book. When asked for his thoughts on the report, he said he admired the process and the extensiveness, but didn’t really see how it would be applied in practice. How would you respond to the idea of practicality of application, given that this is still a conversation that’s going on.

One of the things anyone who advocates change — you probably encounter it as students — is you’ll often be told that what you want is unrealistic, isn’t practical. What is actually meant by that is “it is contrary to our interests.” It is contrary to the status quo. But realities are created by humans, and the current constitutional reality cited in Parliament has only been here 170 years, was made by humans. For hundreds of years prior to that there was another reality, created by a different group of humans, which colonisation sought to destroy. And another reason why the Bolivian constitution is such a worthwhile model or process is because they were colonised by Spain over 500 years ago. So they had over 500 years of reality to change, and when they started talking 30 years ago, when the indigenous peoples there started talking, they were told “it’s unrealistic. We have this profound, beautiful, Spanish constitution.” But I’ve always thought that every change is a shift in reality.

For hundreds of years it was unrealistic for women to vote — you just need to read the speeches of male politicians before suffrage. “It’s unrealistic, it will take women out of the kitchen, it will lead to the decline of Western civilisation.” So I always say, when someone says it’s “impractical” or “unrealistic” — that’s not an argument. It’s an excuse for not engaging. And this is not just about Sir Geoffrey, it’s about anyone who says something is unrealistic. You can’t forever — and certainly not in the Treaty context — escape the debate by saying it’s unrealistic. The debate in the end has to be: “what does the Treaty say?” If in the end the Treaty says, as the Tribunal framed it, that there are two constitutional spheres of interest, the response can’t be “oh God, that’s so unrealistic.” The response has to be, “how do we do it?” And what was really exciting for me in the hui with our people is that nobody said, “this is unrealistic.” We had big hui in Auckland three weeks ago, held at the fale, at the university, a whole lot of Pasifika peoples came, and no one there said, “this is unrealistic.” Everyone said, “Yeah, what can we do? What’s it going to look like?” and that’s where you start. Once you’ve had that conversation, we can say “how do we make this work?” That’s why in our report we say 2040.  I mean, we just plucked that out of the air — 200 years since the Treaty seemed a good point. That’s now 23 years away. And I think if we have a discussion over 23 years, by 2040 we will have reached a point where people are saying, “yeah, how do we do it?”

When I was a student here at Vic — it probably seems really quaint and shows how old I am — there was a huge debate about having men and women in the same hostel. “Oh God, you can’t have that, there will be sin and moral collapse, and what next? You’ll have men and women students flatting,” and there was this huge debate. It was “unrealistic.” Looking back now, it was a silly debate. And when people advocated for gay marriage, or whatever, when you put aside the moral objections, “gays are sinful” or whatever, put aside all that nonsense, you have people saying “it’s unrealistic, you can’t have gays rushing round getting married” — well, why not?

So everytime I hear “it’s impractical,” that to me is where the debate should end. Not where it should begin. We work out the morality, then we work out the practicalities. And they won’t be easy — I’m not minimising that they will be easy. But if we just stop and say “we aren’t going to do that because it’s unrealistic,” then that’s not a Treaty discussion.

I’ve never bought “unrealistic” as an argument.

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