Traditional Authority and the Legitimation Crisis of « Urban Tribes » : the Waipareira Case. Andrew Sharp

N°6 Printemps 2003

OCÉANIE, DÉBUT DE SIÈCLE

Andrew Sharp

 

Résumé :

       L’article contextualise et explicite les conclusions rendues en 1998 par le Tribunal de Waitangi dans une affaire où un groupe associatif de Maoris urbains, le Waipareira Trust, voulait faire reconnaître qu’il était détenteur d’une forme d’autorité maorie, le « tino rangatiratanga ». L’article fournit une analyse de certains conflits actuels parmi les « tribus » (iwi) et une critique (bienveillante) des tentatives faites par le tribunal pour réconcilier les fondements opposés sur lesquels les iwi traditionnels et les nouveaux iwi urbains revendiquent la légitimation de leur existence et de leurs droits. Mais la position du tribunal apparaît gênante intellectuellement en ce que sa référence enthousiaste à la coutume ou à la tradition maorie (tikanga Māori) s’accompagne d’arguments qui sapent leur autorité. Dans une conclusion de théorie politique, les idéaux abstraits, la contingence et le consentement sont déterminés comme les trois principaux facteurs de déstabilisation de la coutume. Machiavel et Locke ont certes fourni de plus vigoureuses déstabilisations, mais dans un genre qui n’était guère différent.

Abstract :

       The paper sets in a New Zealand context and explicates the 1998 findings of the Waitangi Tribunal on a claim by the Waipareira Trust that it possessed « tino rangatiratanga », which is a species of Māori authority. In doing so it provides an understanding of certain current conflicts among tribes (« iwi ») and a sympathetic critique of the Tribunal’s attempt to reconcile the conflicting bases on which traditional iwi and new, urban iwi, claim legitimate existence and rights. It is argued that the intellectually embarrassing thing about Tribunal’s position lies in its enthusiastic appeal to tikanga Māori (Māori custom or tradition), and yet in its providing arguments that undercut the self-subsistent authority of tikanga. In a concluding section of political theorising, the roles of abstract ideals, contingency and consent are shown to be the main destabilisers of tikanga. Machiavelli and Locke are shown to have provided much more vigorous destabilisations, but ones that were not much different.

 

 

The problem for urban iwi

       A recent phenomenon in New Zealand public life is that almost all aspects of Māori relationships are discoursed upon by way of appeal to the Treaty of Waitangi, signed in 1840. Since the mid-1980s « The Treaty », as it is often simply called, has been successfully alleged to continue to « speak » authoritatively on current issues. It speaks on relations among Māori. It speaks on relations among Māori, Pākehā (European settlers), and other ethnic groups. It speaks of relations between Māori and governmental agencies, both central and local. Most comprehensively of all, it speaks of the relationship between Māori and the « Crown », which is to say the state in its permanent aspect since it came into being in 1840 — all agree, as some kind of consequence of the Treaty itself. Insofar as it stands interpreted as the original agreement between Māori and the Crown, and constitutive of their relationship, the authority of the Treaty is of great prescriptive power and range.

       It is often difficult for strangers to understand the significance of what is being said when New Zealanders so widely exploit the Treaty’s authority in their discussions. It is not only that argumentative positions are located in a unique complex web of power and authority relations. This is true of any place. It is also that they are defended with reference to highly contested versions of the meaning and prescriptive force of the Treaty. Distributive justice is talked of this way ; and reparative justice ; and sovereignty ; so are the most intimate, evanescent and delicate questions as to the distribution of status and authority in society and politics (Sharp 2002 ; Fleras and Spoonley 1999). The result is a rich mix of discourses of law, history, and philosophy with contemporary political and economic common sense (Sharp 1997a, 2002). And uniquely to New Zealand, Māori conceptions of the proper ordering of things feature prominently in argument. Much weight hangs on the translations of words in te reo Māori (the Māori language) into English, especially into legal English, which is the language of state power. Much time is spent interpreting ancient and modern Māori conceptions, embedded as they are in « tikanga », or custom, so as to demonstrate their contemporary moral and legal force. A prime site of interpretation is the Waitangi Tribunal, composed of both Māori and Pākehā members, whose tasks include that of interpreting the « principles » of the Treaty, mostly in the service of suggesting to the Crown what wrongs have been done Māori, and how best to remedy them (Sharp 1997a ; 1997b).

       Prominent among the complex disputes at issue are those to do with the location, meaning and force of « rangatiratanga » or « chieftainship » in contemporary life. The disputes concern (to offer an initial set of typical translations) « power », « authority », « the right to manage », « the right to self-determination », « the right to self government » and so on (Sharp 2001a, 2001b). The precise location, meaning and prescriptive force of any instance of alleged rangatiratanga varies considerably, but it is always Māori who are said to have it. This is by virtue of the Treaty’s either constituting the right to rangatiratanga, or alternatively recognising it as an inalienable Māori right that already existed. The Treaty is in two languages and does not say any of this in the English version. That version merely guarantees Māori « the full exclusive and undisturbed possession of their Lands and Estates Forests Fisheries and other properties […] so long as it is their wish or desire to retain the same in their possession » ; and it does so in consideration of their ceding to the Crown « absolutely and without reservation all the rights and powers of Sovereignty ». The reo Māori version however, in consideration of Māori recognising certain limited powers of governance in the Crown, guarantees « to all the people of New Zealand the unqualified exercise of their chieftainship over their lands over their villages and over all their treasures/ ki nga tangata katoa o Nu Tirani te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa » (Kawharu 1989, Appendix). In brief, the Māori version of the Treaty denies absolute sovereignty to lie in the state and asserts Māori authority over not only Māori property, but also over everything that they treasure — whatever that might happen to be. It was in the light of these words as a basis for Treaty morality and Treaty law, that Māori, increasingly from the early 1970s and massively from1984, asserted rights to reparation for past wrongs (Sharp 1997a). More hesitantly at first, but with increasing confidence, they also asserted their inalienable rights to exercise their rangatiratanga — however defined. They claimed what H. L. A. Hart has called « special rights » by virtue of past acts and past situations that generated them (Hart 1955 ; Sharp 2001a ; Sharp 2001b).

       The assertion of tino rangatiratanga was most easily made on behalf of all Māori, considered as a people separate from Pākehā, and bearing, as « tangata whenua » — « people of the land » — unique rights of action and recipience, including rights against the Crown. The law courts, following a Court of Appeal decision of 1987, began to speak of a « partnership » between Māori and Crown ; and in elaborating on the terms of that partnership, governments of the late 1980s and 1990s passed statutes enjoining adherence to the « principles » of the Treaty. Soon though, it came to be appreciated in official circles that it was not only (or even most fundamentally) Māori taken as a whole who bore rangatiratanga. Rangatiratanga was rather held by « iwi » — those who in te reo Māori share the same « bones », or in English are of the same « tribe ». An Act of 1990, the Iwi Runganga Act, attempted to formalise the existence of iwi in law ; and though the Act foundered on the resistance of iwi to having the Crown decide on whether they met Crown-made criteria of identity, and to having forms of internal governance thrust upon them, it was nevertheless true that Māori themselves, in one mode of identification, saw the iwi as fundamental to their existence. It was preferable to the post-settler construction of « Māori », which treated them as a mere ethnic group (Sharp 1997a).

       Māori come in many kinds of groups (Durie 1998 ; Sharp 2001b) ; but iwi were, so to speak, « fundamental » groups (Sharp 2000, 2001b, 2002). Each one bore the name of an ancestor, usually related to a founding « atua » or god. Its members could recite « whakapapa » beginning with the gods and continuing to the present day. These whakapapa were in one sense simply many-branching genealogies, adaptable as to their elaboration to any situation ; but they also bore traditional knowledge of all natural, human and spiritual relationships down through time. Iwi organised the continued existence of the ancestors’ descendants in the iwi life-world. They protected them ; they acted for them ; they reverenced them when they in their turn left the world of light and joined their ancestors. It was from the iwi that each individual Māori — now seen for instance as Ngati Porou, or Ngāi Tahu, or Ngapuhi rather than Māori — derived both his physical and jural existence. It was not only his bones that he shared with his iwi. His rights and responsibilities, his duties and obligations derived from it. He did not choose, and he could not leave his iwi, unless other iwi ties also laid burdens upon him and he must choose between (say) two iwi. As to the external relations of iwi : each iwi stood alone as an island of sovereignty, each holding rangatiratanga over and against the other, and if necessary exercising it. This is, for instance, why a pan-Māori organisation, the Māori Congress, had great difficulty acting as a single unit in the 1990s. Each iwi retained a veto over the decisions of the whole, and each remained free to leave the organisation (Cox 1993). Iwi were the fundamental sites of rangatiratanga ; all other groups were « derivative » groups, their rangatiratanga devolved on them by iwi, and always susceptible to the withdrawal of iwi authorisation. They were constructed as vehicles of action by conscious human will, and were not the natural bases of Māori life.

       Without complicating matters further at this point, it remains to add that iwi were not alone in claiming such fundamentality. Hapū (the name suggests a pregnant womb) or sub-tribes, soon came to claim their own fundamentality and the consequent derivativeness of iwi, which could now be pictured merely as groupings of hapū, convenient in war, large fishing expeditions and the like. Nor was this the end of claims to fundamentality. Among others, Professor Hirini Moko Mead asserted it of even smaller groupings : extended families, or whanau.

« The act of whakawhanau (giving birth) produces a newborn child, a whenua (placenta) and eventually a pito (umbilical cord). The whenua and the pito are buried or placed within the land of the whanau and that establishes a spiritual link between the land and the child. Once born the child inherits a number of rights called a birthright […] When the child matures the birthright can be exercised. These rights are automatic and have become the foundation of rights in the hapū and iwi » (Sharp 2002 : 21).

       This tendency to deny iwi claims to fundamentality was marked during the lengthy negotiations over the pan-Māori fisheries settlement beginning in 1990 and still under way. Certain hapū resisted having their share of the « business and activity of fishing » counted into the resources of the larger iwi that embraced them. Similarly, as Treaty settlements unfolded in the 1980s, fractions of Waikato-Tainui and of Ngāi Tahu objected to the constructions of systems of iwi identity and governance that would derogate from their own rangatiratanga. As a matter of fact, they more often appealed to their « mana whenua » in this context than rangatiratanga. Mana was a kind of power and authority independent of the constitutive force of Treaty, or even recognition in it (Waitangi Tribunal 1985a : § 10.2, 1985b : § 8.3, 1987 : § 11.5). It was generated, according to customary understandings, in a people’s unique connections with land (whenua) ; and mana whenua, or authority over the land and its people was the outcome. The fractions thus disputed the form of the Treaty settlements entered into between the Crown and the iwi, claiming that new wrongs were now heaped upon the old, when the Crown treated the iwi, and not the hapū, as its Treaty partner. Rangatiratanga should follow mana.

       Whatever their differences though, the legitimatory formulae of iwi, hapū and whanau were similar ; and all have in fact opposed cross kin-group arrangements in similar terms, most recently the attempt to construct a powerful Māori authority in the central North Island, to deal with the Volcanic Inner Plateau Treaty claim (NZLC 2002 : para. 20). Each fundamental group claims to be able to « whakapapa back » to a certain ancestor ; each claims a unique attachment to a certain portion of land ; each refers to tikanga or custom, and to their own ways of proceeding in ceremony and deliberation (kawa) that point to their unique and exclusive rights to govern themselves and control their takiwā, or territories.

       In approaching a specification of the problem described in the remainder of this paper, it remains to note that this mode of identification and status-claiming cannot be employed without quite severe strain induced by current facts about the Māori world, and without excluding from its ambit a great proportion of ethnic Māori. An image of a Māori world as a whakapapa-regulated one would be of the two main islands of New Zealand and the smaller outliers inhabited by some eighty or ninety iwi, perhaps five times the number of hapū, and still more whanau : each in its takiwā ; each attached to its whenua ; each exercising the rights of mana whenua there — or to put it in Treaty discourse, « rangatiratanga ». Iwi, hapū and whanau might be imagined to be spread like a patterned cloak across the whole body of the land. But in fact censuses of 1991, 1996 and 2001 show that more than 80% of those who identify as « Māori » live in a few urban centres, especially Auckland, and are therefore variously disconnected from their takiwā and their extended kin. They show that of the 350-400,000 Māori, about 20% do not know their iwi. It is moreover very common for individuals to identify with more than one iwi ; and to « affiliate with » an iwi (such is the census term) is by no means to live a life in an iwi milieu. Only 27% of Māori claim to be able to carry on an ordinary conversation in te reo Māori and so the deeper meaning and details of tikanga and kawa must escape many. It must be difficult for them too, if not impossible, to whakapapa back through their ancestry. Membership of an iwi or hapū or traditional whanau would be a very attenuated thing for such individuals (Statistics New Zealand ; Sharp 2002).

       Many Māori in fact live their lives in ways scarcely distinguishable from their Pākehā neighbours — more than 60% of Māori marriages were to Pākehā at last count (Harré 1966) — and the milieu of existence of all 4,000,000 or so New Zealanders is that of a modern western state and economy. Nevertheless Māori have shown a vigorous sense of separateness from other ethnic groups and a marked desire to work together for the good of what they often call « our people ». And so it is that « urban iwi » have been formed in the main cities : most notably in Christchurch, Wellington and Auckland. The ties of kinship do not join these iwi. The individuals who make them up do not come from the area where they meet and act together. They share no ancestral tikanga, kawa, or whakapapa. Yet urban iwi do provide meeting places (marae), much like traditional ones, for their urban members ; they provide companionship ; they deliver small kindnesses and acts of love as kin do. Most relevantly here, they deliver social services, often funded by government programmes. They continually find themselves frustrated by government control and would rather govern themselves. They think they deserve more respect (and sometimes funding) than other, similarly positioned community organisations, because they are Māori service providers and possess tino rangatiratanga. The question to be addressed is therefore this. Can Māori organisations that are not fundamental groups based on kinship claim rangatiratanga ?

       When this question is posed, urban iwi find themselves at the intersection of Treaty considerations as to the relationship between Māori groups and the Crown, sociological facts about real Māori lives in cities in a liberal-democratic and capitalist society, and the well-established legitimacy of fundamental groups according to tikanga. On the face of it, Māori principles of legitimacy would seem to make a positive response difficult. As a skilled ideologist of Māori fundamental groups, Apirana Mahuika of Ngati Porou, put it in considering the question in 1997 :

« One of the strong advocates of the ethnicity argument as a means of acquiring resources to meet the needs of urban Māori is John Tamihere, a nephew of mine by whakapapa, who acknowledges my relationship to him by whakapapa. I use this example to illustrate the fact that ethnicity, though used in specific circumstances, cannot usurp the mana and role of whakapapa as the determinant of who one is affiliated to, and who are one’s kind based on descent and blood. This is the reality in spite of the ethnicity claim by urban Māori authorities to access resources […] whakapapa is the heart and core of all Māori institutions, from Creation to what is now iwi. Whakapapa is the determinant of all mana rights to land, to marae, to membership of a whanau, hapū, and, collectively the iwi whakapapa determines kinship roles and responsibilities to other kin, as well as one’s place and status within society. To deny whakapapa therefore as the key to both culture and iwi is a recipe for disaster, conflict, and disharmony » (Mahuika 1998 : 219).

       Mahuika saw the task for Māori and the Crown as that of attempting to marry the principles of chosen Māori community (described as principles of « ethnicity ») with those of whakapapa community, so as to do « justice to both ». Legal and political authorities continually find themselves asserting something like the same. A reasonable balance or blend must be arrived at between the substantive claims the contending groups make ; and there is evidence that compromise can occur (NZLC : 2001, 2002). But that is not at all the task to be attempted where it is the truth of things that is at issue rather than peace and social cooperation. If the principles on which the legitimacy of the two kinds of groups exist — principles of whakapapa and principles of chosen identity and group action — are in such stark opposition as formulae of legitimacy, it may be suspected that no higher form of legitimation can easily combine both. Doubtless, courts, legislators and politicians can, and often should, treat the contending ways of seeing things as only reflecting interests, and so balance and trade off the substantive claims of the competing groups, treating at times what is inalienable as negotiable. A serious Māori theory of group legitimation cannot do so without denying either tikanga or modernity, or both. It must take legitimatory theories seriously. In what follows, I consider the best attempt that has been made to combine tikanga and modernity.

 

The Waitangi Tribunal and the legitimacy of the Waipareira Trust

       It was in the early 1990s, on the issue of a pan-Māori fisheries settlement, that the unenviable task of doing « justice » to both whakapapa and chosen groups fell Waitangi Tribunal (Waitangi Tribunal 1992). A later court case soon usefully named chosen groups « kaupapa » groups (Sharp 2002) : they were groups joined together for the purposes of pursuing a common programme or agenda (kaupapa), rather than groups tied by blood. But the courts did not succeed in suggesting substantive ways forward, and the issue stayed with the Tribunal. Just after Mr Mahuika’s remarks about the fundamentality of whakapapa groups, it further elaborated its views in findings on claims brought to it by the Waipareira Trust Board in its Whanau o Waipareira Report (1998). The Trust was the governing body of an urban iwi, of which John Tamihere (Mahuika’s nephew) had until recently been the Chief Executive Officer.

       The Tribunal held, despite the difficulties, that an urban iwi could possess and exercise rangatiratanga : « the application of the principle of rangatiratanga... is not limited to tribes but applies in a variety of situations, and the exercise of rangatiratanga by particular Māori groups and within particular Māori communities, tribally based or not, is an indicator of whether that group deserves special recognition [by the Crown] » (Waitangi Tribunal 1998 : xxiv). Whether Mahuika approved of the finding and its argumentative backing or not — and it is doubtful that he could have — the Tribunal’s thought is worth close attention. It reveals a deep attachment to tikanga, but at the same time exhibits a tendency to idealise it in a way that makes it amenable to adaptation to modern ways, aligning it with leading current ideas about good governance and corporate behaviour, social welfare, legal-bureaucratic procedures, and the importance of freedom of choice and democracy in modern life.

       Tikanga can mean either a body of custom conceived of as a whole system handed down by tradition, or just particular customs, singular or plural (NZLC 2001). The process of idealisation in play is that of characterising tikanga seen in either way as instantiating a few, very important, ideals. Those ideals are then used to show (often only implicitly) why respect for tikanga is called for and why (more explicitly) government agencies and indeed any citizen, should see that groups following tikanga must be accorded respect, or in Treaty terms, rangatiratanga. The Tribunal’s aim was to show why the Waipareira Trust in particular held tino rangatiratanga. Its accompanying reasoning reaches to a more abstract plane — the beginnings, perhaps, of an attempt to construct a ius gentium from tikanga, even ius naturalis : laws that all New Zealanders should follow as a people, or even as human beings. At this point in reasoning, the origin of that law in tikanga is left as far behind as the laws of Rome were by the law of the natural law, or the custom of England by the natural rights of a John Locke or a French revolutionary (Oakeshott 1974a). It is not the customariness of behaviour that matters. It is its rationality according to certain clear ideals. This line of thought may be seen emerging in the defence of Waipareira.

*

       In an important section of the Report (Waitangi Tribunal 1998 : § 8.2.3), the Tribunal notes that the holders of rangatiratanga are rangatira — in English « leaders » rather than, as the etymology might suggest, « chiefs ». To hold rangatiratanga is thus simply for someone — it need not be a chief — or an élite group to have authority over the people of the relevant community. It is also for the community to have rights against or over other groups. But the Tribunal was concerned not to put too much emphasis on interpretations of rangatiratanga as denoting « autonomy, sovereignty, authority or control — that is the exercise of rights ». Nor did it dwell much on what it called the legal « incidents » of rangatiratanga : its scope of control of such matters as lands, estates, forests, fisheries, and so on (§ 1.5.5). It had done these things on other occasions (§ 1.4.5, p. 22 and p. 22n29. Cf. Sharp 2001a), and because of the issues at stake in the particular case of Waipareira, it rather concentrated on what an authoritative Māori Council document of 1983 (NZMC 1983) had stressed : that rangatiratanga is not only a concept of control. Rangatiratanga « also concerns the responsibilities, duties, obligations, service and accountability — the other side of the same coin » (xviii and § 1.5.4, p. 25).

       But that said, insisting on the juridical forms of rangatira duties rather than the rights of those with authority was not centrally on the Tribunal’s agenda. It was instead more concerned to sketch the ideal conditions in which rangatiratanga operated, which is why it stressed the duties of leaders. It wished to show what it is that justifies the existence of rangatiratanga both in general and in particular communities. A simple appeal to tikanga would not do ; just to report something as a matter of tikanga would not be enough ; it is the purpose and rational value of arrangements that is also at issue. The movement in thought is — though never unequivocally — from custom to reason, and from ascribed status to contract and consent in conditions of contingency.

       Sketching its ideal, the Tribunal argued that rangatiratanga is inherent in a community in which « the members are bound by a common imperative to nurture and care for others and the things that are imperative to their well-being » (§ 8.3.3.4 : 229). And not only well being but also personal and group identity is a function of rangatiratanga : « a relationship of rangatiratanga between leaders and members is how a Māori community defines itself ; it gives the group a distinctly Māori character ; it offers members a group identity and rights » (§ 1.4.5.5 : 26). There is, too, a « reciprocal relationship of trust between leaders and members of a Māori community, kin based, or non-kin based » (§ 8.2.3 : 241). Governance is a trust. The terms of the entrustment of leaders are designed to :

« […] protect and promote the interest of the community […] and all its members. A rangatira has a duty to protect, nurture and augment the human resource by maintaining a safe spiritual, social and economic environment, one that maximises the benefits to and the contribution from all members, with the aim of enhancing the autonomy of the community, and their ability to determine their own future direction and manage their affairs according to their own priorities. A rangatira secures the support and political allegiance of the people, the community from whom he or she gains the authority to articulate their will and advocate their interests » (§ 8.2.3 : 214).

       Most of the terms of the trust are expressed in notably contemporary language. Much of the phasing is the offspring of 1980s and 90s officialese. Words and phrases such as « human resource », « safe […] environment », « enhancing », « managing », « maximising », « future directions », « priorities », and « determine », are clear examples. All the same, the values expressed are argued to be traditionally Māori, and they are to be discharged in a spirit of love and care for the kin-group (whanaunatanga) (§ 3.3 : 79). Customary values are said to be paramount.

       It is because the values are customary that the use of the present tense in the passage on the duties of the rangatira quoted above, expresses the optative mood as well as the indicative. « Ought » is to be derived from « is ». Very often too, « is » and « was » are substitutable without remainder when the Report glosses more directly the content of tikanga. The tense is unimportant, because in tikanga what « was », « is » ; and what « is », « was ».

       « Rangatiratanga », the Tribunal stated soon after the passage just quoted, « is the key Māori customary principle of social, political and economic organisation », and Māori have « the right to identify with the communities and support the leaders of their choice, in accordance with Māori custom » (§ 8.2.3 : 214-215 ; 1.4.4.4-5 : 25-26). It is at this point in thought — when the emphasis is off the leaders and on to the people — that the idea that consent is an important constituent of rangatiratanga makes its appearance. Rangatiratanga is justified because it is the based on the consent of the community ; and communities themselves are based on the consent of individuals : « The support and loyalty of the community is a vital ingredient of rangatiratanga, and that flows from the exercise of choice by individuals. Rangatiratanga cannot be imposed on the people — the people choose their own rangatira and create their own communities » (§ 8.2.5.3 : 219).

       It is consent, then, that constructs communities and leadership. People are not bound to consent to leadership, or to continue to consent to it, even if they once did. Nor do they have any duty to consent to there being rangatiratanga in any particular group at all. They may withdraw their consent and dissolve the community in doing so. This is a reasonable response to leaders acting in the wrong way : « popular support, freely given, can equally freely be withheld or transferred in order better to secure the interests of individual members or the community ». Such norms of individual and community choice are reinforced by considerations of sheer political contingency. The Tribunal observes that as a matter of fact « leaders cannot act decisively, creatively, boldly — effectively — without the respect, loyalty and trust of their community ». Rangatiratanga is a « dynamic relationship », and the « political success » of any particular relationship may « wax and wane, ebb and flow ». Where there is a kinship base, « kinship and descent provide ready-made networks of relationships among Māori, but it is rangatiratanga that determines which of those relationships have current significance ».

       The language — the continued movement between assertions of moral right and considerations of efficiency and contingency as reasons for actions — might confuse a philosopher. Clearly though, it is the Tribunal’s view that nothing is absolutely stable. Group making and breaking is a matter of choice in conditions of contingency. Everything might seem to depend on the perception of people, on — at worst — mere opinion and deluded fancy. Individuals certainly have the right to make and break communities. But this is not quite so. Individuals have a duty, in conditions of challenging contingency, to respect Māori tradition, presented in the form of a whakatauki (or proverb) :

« [T]he need to maintain the unity and integrity of Māori communities was a powerful social control. « He totara wahi rua, he kai na te toki - A split totara [tree] is vulnerable to the axe ». Individuals have their personal responsibilities to the community, including past and future generations » (§ 8.2.3 : 214).

       The political theory of rangatiratanga is, in sum, this : rangatiratanga relations are those characteristic of a good community ; those characteristics are expressed in a trust relationship between leaders and people. Where that relationship is not simply the psychological one of having faith in one another, rangatiratanga is based on consent in acts of original and continuing entrustment ; consent will be given where rangatira attend to their duties in a spirit of love and concern. Consent is necessary if communities are to function efficiently, and its withdrawal will destroy them ; the giving of consent to a new community and withdrawing of it from an old one are not light matters to be done on a whim, but only in conditions of necessity.

       The function of such a series of propositions is twofold. To employ a useful philosophical distinction, it shows the general justifiability of the practice of rangatiratanga, and it also points to a way of judging the particular legitimacy of rangatiratanga relations among specific peoples (Simmons 1996). In a similar context we know that to justify the practice of promising is one thing ; to show that a particular person is legitimately bound by a particular promise is another. In the same way, to ask what justifies rangatiratanga is different from asking whether, rangatiratanga being justified, a particular community or group has it.

       Rangatiratanga relationships are in general justifiable because they are precisely those relationships that are characteristic of a good community. The characteristics, found enjoined in tikanga, would be recognised by anyone, even (the Tribunal doubtless thought) by those uncommitted to tikanga : a leadership dedicated to the good of the community ; a community respecting its leaders ; both committed in loving harmony to the preservation and flourishing of their joint enterprise. Rangatiratanga is thus justified by reference to ideals which, while in one sense they are constituent of its very definition, in another sense stand outside it. As the idealised central characteristics of rangatiratanga, they provide standards of categorical judgement as to whether certain relations are or are not cases of rangatiratanga. As idealised values they stand in judgement as to its worth. In this way the practice of rangatiratanga is justified by reference to certain ideals of good community relationships. Rangatiratanga is also (we may concede for the moment) justified by reference to its being an element in tikanga ; and in the same move, tikanga is justified. For tikanga contains within itself the wisdom to suggest that, in the fragile contingency of things, it is right that people should construct and reconstruct their relations through time. Even though the location of rangatiratanga among particular communities might « ebb and flow » it itself « endures as a fundamental Māori value » (§ 8.2.3 : 214). « The principle, or customary value, of rangatiratanga remains the same. All that changes is the way in which it is applied […] » (§ 5.8 : 129).

       In this conjuncture of argument, consent is presented as a mode of adaptation to change, an essential element in demonstrating the general justifiability of rangatiratanga relations. If rangatiratanga were not susceptible to continued community and individual judgment, it would not be justified. It is also a crucial element in the legitimation of particular rangatiratanga groups. Consent is a crucial, (but not the only) sign that a particular people stand, and rightly stand, in a particular relationship, because of something binding they have done or are doing together : a treaty, an agreement, a record of cooperation that generates reasonable expectations of its continuing, an exiting trusting interdependence. Just as acts like treaties, or events like perpetrating wrongs, generate special rights (Sharp 2001a), so may acts and situations generate the legitimate existence of particular groups and communities. Their legitimacy is to be demonstrated in their history and current state.

       The Tribunal did not have much to say as to how traditional rangatiratanga communities, most notably hapū, came to be. However its observation that rangatiratanga can « wax and wane », suggests that histories of the creation (as well as of dissolution) could be written, in much the way, for instance, that Dr Angela Ballara depicted, also in 1998, the fluidity of hapū and iwi in the nineteenth century (Ballara 1998). All rangatiratanga communities began at some time ; none was static ; all adapted, and all could decline or die. The implication then is that histories of the origins of traditional communities could, if it were an issue, be elicited, and they could be used in a critical way to assess the legitimacy of their particular group’s claims to rangatiratanga.

       The Tribunal was certainly intellectually equipped to critically examine origins : « we must look to the origins and underlying purpose of a thing to divine its true intent... » (§ 8.2.5 : 216). But it had no need, or wish, to analyze the legitimacy of any traditional group this way. Neither the Waipareira Trust nor the government was challenging the credentials of the local Ngati Whatua and Tainui in the Waipareira case (§§ 1.1.1.2 : 3-4 ; 2.7.2 : 75-76 ; 8.2.5.2 : 217-18). So the Tribunal simply noted that traditional rangatiratanga existed in « face-to-face communit[ies], the whanau or hapū, whose members shared heritage and territory » (§ 1.5.4.2 : 23). The relationships had been transmitted to their descendants, who had indeed modified the details of their arrangements in the face of the exigencies of colonization and modernization, but not the essential elements of the trust. The whakapapa groups stood legitimated without further argument from critical, ideal-informed, history.

       The question for the Tribunal was rather whether the history of the Whanau o Waipareira showed the coming-to-be and exercise of rangatiratanga. Only if it did were its claims to rangatiratanga legitimate, because not all Māori groups could claim « special consideration ». The Tribunal did not consider it wise to provide a « prescriptive list of criteria » as to the necessary and sufficient conditions of rangatiratanga. It was « neither desirable nor, we think, possible to create a checklist of the ingredients ». The idea was rather to find « a demonstration » (or « exercise »), « of rangatiratanga values in action, albeit in a modern setting », (Sum.7 : xxv. Cf. §§ 1.5.4.2 ; 1.6 : 31) and this is what the Tribunal did in chapters 2 and 3 of the Report.

       It was a long story. The Tribunal related how the legal entity, the Waipareira Trust, had originated in a milieu of many Māori groups co-operating since the 1950s to help Māori in an urban setting, in west Auckland, in the area of Waipareira. There were Māori Committees and Māori Wardens set up under the Māori Welfare Act of 1962 ; there was the Māori Women’s Welfare League ; from the mid 1960s there was the movement to found an urban marae, which was to emerge by 1980 as the Hoani Waititi Marae. Then there were the widespread initiatives in the early 1980s to capture government funding. Such more-or-less coordinated activity among Māori leaders led to a meeting of sixty people from twenty-three different Māori organisations in June 1982. That meeting inaugurated the Waipareira Community and the Waipareira Community Management group. The next month saw the founding of te Whanau o Waipareira by a meeting of the Management Group-« te Whanau » because the name was « in keeping with the whanau concept of helping and supporting each other ». The Trust itself was finally set up by the Whanau in May 1984, and began to operate in the general area of social welfare. It provided services — or helped other groups to provide services — in the fields of mental and physical health, in education, training and employment, in economic and community development, in the provision of food and comfort for the distressed, in family counselling, the care of children at risk, in advice to prisoners and their families, and anger management. When the funds began to dry up in the early 1990s, it set up a commercial arm in 1993 to provide « a far more solid and long-term economic base », and its increasingly sophisticated management and accounting systems were made available to advise and help the many Māori service groups affiliated with the Trust.

       The record of service was an impressive one, and as the Tribunal laid it out, illustrated its view that : « Rangatira are the quintessential leaders of society. Their leadership focuses not on self-interest but on the survival of their community. The heroes of the Māori world have been those who have applied these principles with fortitude and imagination » (§ 1.5.4 : 26). Te Whanau o Waipareira was « bound together as a community ». It was, it is true, not « a bond found at the deeper level of spirituality that is inherent in the reverence among kin for their ancestors. » But Waipareira was indeed a community, « one in which there were both leaders and led, where there were rewards of approval and promotion, protected by sanctions of rebuke and exclusion, and where voluntary service was the high ideal » (§ 3.1 : 78).

       It is clear that the Tribunal, while legitimising the Whanau o Waipareira by reference to tikanga principles of rangatiratanga, was still not prepared to say that its formula of legitimation was exactly the same as that of a whakapapa group. It kept a distinction between the two on grounds that whakapapa was missing at Waipareira. Nevertheless it insisted that the Whanau was to be described, understood, and treated in terms of tikanga. This is most clearly evident when, having commended the Trust for its exemplary legal procedures as to democratic election of officers, accountability, business practices and so on, it insisted that it was not the legal constitution of the Trust that really mattered. Māori just did, would, and should come together and co-operate together in their own, self-justifying mode of tikanga :

« While legal structures may be established by Maori groups for their own purposes, they merely reflect or approximate the locus of rangatiratanga, and the legal structure should not be mistaken for the community. A group that does not act as a community (whatever its legal constitution) cannot properly be said to exercise rangatiratanga.
Rangatiratanga is not absolute. The character of rangatiratanga depends on the internal dynamics of the community, and it may well fade around the edges, and can change over time » (§ 1.5.4.4 : 25).

       Such rangatiratanga principles are an intrinsic constituent of tikanga. When the Tribunal comes to discuss the principles of the Treaty of Waitangi, they make a clear distinction between the customary mode of rangatiratanga and the extrinsic mode of law : « The Maori text and the oral promises made at the signing of the Treaty make clear that what was guaranteed is the right to speak their own language and live according to their own custom […] and is not the imposition of English language and the rule of English law ». To refer again to the conflation of the present and past indicatives and the optative, Māori were, and are, and ought to be entitled to live according to « all customary values and practices ». In another contrast between another mode of law (international law) and tikanga, the Tribunal argued that « current human rights standards » as to the empowerment of groups like Waipareira provide « some counterpart » to Māori custom : ‘some counterpart’, but not an equivalent (§ 8.2.3 : 215). Tikanga Māori is Māori right and Māori custom. Rangatiratanga is the creature, or rather expresses the fundamental content and quality, of tikanga. Te Whanau o Waipareira possessed rangatiratanga and should be treated accordingly.

       This is the rather unsatisfactory conclusion of the argument : the Whanau was a traditionally legitimated grouping, even if not a whakapapa group. The question remains as to the deeper logic that enabled the Tribunal to assert this of a kaupapa group — of a voluntary association of freely consenting individuals co-operating for a set of limited purposes.

 

Custom, reason, consent, and the Waipareira findings

       To justify something is to appeal to something outside it, not simply to say what it is : I keep promises because the practice of promising makes for a more predictable world. Thus I have appealed to the norm of having a predictable world as justifying the keeping of promises, and have justified promising by appealing outside it, to something else. I cannot just say I keep promises because promises are to be kept. It might be thought that the Waipareira findings show otherwise : that the justification of tikanga and rangatiratanga might proceed simply by way of appeal to established practices as if they were self-evidently justified. But besides the obvious difficulties posed in treating a kaupapa group in this way by appealing to tikanga of which it is (only perhaps doubtfully) a part, there are more general considerations that make suspect such a mode of reasoning.

       Any body of custom may be translated, summarised and codified, its main features laid out in propositional form for all to see. In New Zealand as elsewhere, many object to this as a codification of what is too complex and subtle to be rendered into rules, too much dependent on time and place to be generalizable, too much expressed in ways other than the prosaic language of propositions to be put into words (Tau 2001). In certain circumstances, others see such summary treatment as redefinition in the interests of a colonising power. Thus Moana Jackson, a prominent Maori lawyer :

« [T]he process of redefinition continues the attempt by an alien word to impose its will on the beneficiaries of a different word. It captures, redefines, and uses Maori concepts to freeze Maori cultural and political expression within the parameters acceptable to the state. It no longer seeks to destroy the culture and the word through direct rejection and overt denigration, but tries instead to imprison it within the perception of its worth that is determined from outside » (Jackson 1992 : 8).

       Others exploit the processes of summary redefinition as a way of gaining obvious material advantage using the processes of extrinsic law (Sharp 2001a). Finally, summary translation often occurs when the point is to persuade opponents of the excellence of the customs or body of custom at issue. As will already be evident in the Waipareira case, Māori do just this, and there is abundant evidence elsewhere that they do (Sharp 1995). When they do, they may be described, with Michael Oakeshott, as rationalising their tradition (Oakeshott 1974b). Having abstracted its leading principles — even though, like the Waitangi Tribunal, they cannot go so far as to list everything that is good — they then apply those principles as a critique not only of alien ways of proceeding, but of their own. This is inevitable. Propositions (unlike ceremonies, or dances, or images in sound or space) naturally call to the mind their contraries. The presence of contrary propositions leads to dispute ; custom fails in its central function of containing dispute ; a process of subjecting a tradition to question is set in train. Following a common pattern of human praxis, what may happen next is the formulation of a new system of law, the insistence that it be obeyed even if not believed in, and the imposition of judgements by force (Pocock 1972).

       But we will not take that Hobbesian road here. It is the road that any state or empire must probably (but contrast Tully 1995) take — and New Zealand’s does — but it is not the Tribunal’s road. It proposed instead to retain tikanga as the measure of both justification and legitimation. Had it fully embraced that position there would be no difference between saying that a thing or a relationship is according to tikanga Maori and saying that it is good or right. Tikanga would be is the mode of all right ; not, as law is, simply the mode of legal right, or English custom the mode of customary right. It might be a reasonable question to ask in English or many other natural languages whether a particular law or custom is a good one, or even whether a body of law or custom should be regarded as morally binding on a people. But these are not intelligent questions to ask of tikanga. To ask them would be to misunderstand the concept, which carries the affirmative answer within itself. Tikanga simply is that which is (to quote dictionaries) « right, just, the way » (e.g. Williams 1971 sub. « mana »). It is the basis of all justification and it is inappropriate to ask that it in turn should be justified.

       But the Tribunal seems to have harboured two views on tikanga’s nature and function, neither of which is compatible with the idea of a self-justified and all-embracing custom. On the one hand, tikanga might be thought to be the collection of those principles of good community relations ; and the principles might appear to be unchanging, providing the most basic measure of what is good, right, and justifiable. Tikanga, seen in this light as transcendental, is not amenable to criticism and change. This view, though not thoroughly articulated by the Tribunal, nevertheless seems to underlie its claims that even though the location of rangatiratanga among particular communities might « ebb and flow », it itself « endures as a fundamental Māori value » (§ 8.2.3 : 214). « The principle, or customary value, of rangatiratanga remains the same. All that changes is the way in which it is applied…. » (§ 5.8 : 129). Such a view was in fact to be more fully expressed by Atareta Poananga of Ngati Porou about the same time as the Tribunal’s report was published :

« Tikanga is an unchanging set of universal, cultural principles which have endured in spite of colonisation […]. The principles were guiding static commandments underlying behaviour according to tikanga and had existed over the millennium covering all inhabitants of our lands. Tikanga relied heavily on collective sharing of decision-making tied to communit[ies] of whanau and hapu compared with pakeha law which stems from a philosophy of individualism. Tikanga has survived the imposition of Pakeha law because they are the underpinnings of cultural strength and continuity » (Poananga 1998).

       On this view, tikanga is scarcely recognisable as a body of custom at all. It is more like a ius gentium or ius naturale of which particular customs and practices are, or ought to be, simply specifications — a law to which, in consequence, all other norms should be subservient (Sabine 1951 ; Passerin d’Entrèves 1972). Roman and natural lawyers held that one could know such laws by comparing the many laws of the many peoples to find what was common and good among them (ius gentium). On a more abstract plane, and more concerned with the epistemology of the process, they and their successors imagined mankind to be equipped with a faculty of reason which could find, among all the choices or norms and practices available for contemplation, those which were natural and good for the whole of humankind (ius naturale). It seems an unavoidable conclusion that a commitment to transcendental tikanga would lead to the critique of actually existing tikanga along such lines.

       On the other hand Tribunal the tribunal conceives of tikanga as the detailed body of evolving custom expressed in the collective adherence of people in communities according to principles of mutual reciprocity for their mutual good. All social, political and other goods are immanent in tikanga so conceived. Each detail expresses the goodness of the whole. There are no transcendent principles by which to judge it, simply the assurance that the detail is justified. Though the Tribunal had other, political, reasons to be unwilling to produce critical histories of whakapapa groups, it is this view that would give intellectual plausibility to its unwillingness. Absent evidence to the contrary, their origins and continuance could be assumed to be in accord with the immanent goods of tikanga. More obviously it is only this view of tikanga that would allow the legitimation of kaupapa groups as customary. Only on this view could the facts about the people’s coming together, organising themselves, cooperating, having leaders represent them and so on, show not just de facto social organisation — de facto rangatiratanga if one may coin a phrase — but rangatiratanga de jure. If facts about consent and co-operation in conditions of contingency are to be given value ; if, more precisely, they are to be taken as constituting legitimate relationships, those facts must already be framed as normal constituents of tikanga, the vehicle by which value is created and transmitted.

       But in this immanentalist theory of tikanga, consent and contingency play roles that undermine the idea of tikanga as self-justifying. The Tribunal and its argument inhabit not a custom-bound universe, but live in what another New Zealander has called a « Machiavellian moment » (Pocock 1975). This is a circumstance in which it is unpleasantly evident that no set of pre-existing norms of social and political co-operation will meet the needs of the occasion. For the Waipareira Trust and perhaps for Māori as a whole, this is the condition they find themselves in. Tikanga can operate for Māori something in the way a political power operates for Machiavelli — as a method of containing and controlling the potentially catastrophic invasion of contingency (or fortuna) into their affairs. Tikanga is only an instrument of a greater purpose : that of protecting people and enabling them to live in an unstable world. Tikanga must be made, was made, and is made, in such circumstances. Tikanga is an « artificial construct », with all the worst connotations of that phrase for any essentialist.

       The role of consent in the immanentalist theory of tikanga is simply that of registering acquiescence in what is best to be done in imperfect circumstances. But there is also in the Tribunal’s reasoning what might be called a « Lockean moment », in which consent plays a much greater role in legitimation, and in which the artificial construct is something unequivocally to be admired. The moment occurs when, like John Locke, the theorist observes a Machiavellian moment as to settled laws and customs. They will not answer his case. Less shaken, however, by the prospect of contingency, he takes a turn towards transcendental norms. In his Second Treatise (1690), it will be recalled, Locke reduces English custom to the universally applicable ideals of protecting « life, liberty and estate ». The ideals are then construed as generating rights or « properties » that every human being holds — « property » in the normal usage of the time, being that which cannot be alienated « without consent ». Locke then imagines men, so equipped with rights, building their own legitimate state by joining in consenting to it. The state is legitimate because they built it by consent ; it will be a good or justifiable one because their reason has led them to construct it on universally applicable ideals. But since they are free to consent to construct a state, cannot they withdraw their consent, and destroy it by the same right, even if it is a good one ? Locke reassures his readers : « People are not so easily got out of their old forms, as some are apt to suggest. They are hardly to be prevailed upon to amend the acknowledged faults in the frame they have been accustomed to », let alone to set up new rulers or a new constitutional pattern of authority (§ 223). The closeness of this line of argument to the Tribunal’s is obvious : the appeal to a set of ideals for communities ; the claim that individuals in fact set up communities along those lines by consent ; the claim that the individuals may also withdraw their consent ; the reassurance that they will not do so lightly.

       It is fascinating to contemplate the similarities in thought of one whose thought has deeply pervaded individualist liberal-democratic ideology with that of Māori theorists intent on saving the appearances of tikanga.

       Modes of justification and legitimation are open-ended. Māori modes are no different. The operation of reason in conditions of contingency will always make the appeal to tikanga a difficult manoeuvre. Confronting the collected, inter-generation iwi, bound in love by whakapapa, there will always be either the « poor forked creature » (Ignatieff, 1984 : 27-53) who stands alone and makes his world because he must, or the confident liberal-democrat who is an individualist, makes his world and is cheerful with it.

 

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