Carwyn Jones: Maori paths for constitutional reform

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Native Nations Institute
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Professor Carwyn Jones of Ngāti Kahungunu descent is a lecturer at the Faculty of Law, Victoria University of Wellington and Co-Editor of the Māori Law Review offers his testimonials on the political landscape for constitutional reform for Māori and other indigenous people. 

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Jones, Carwyn, "Carwyn Jones: Maori paths for constitutional reform," Leading Native Nations, Native Nations Institute, University of Arizona, Tucson, AZ,  October 22, 2015.

Verónica Hirsch:

 Welcome to Leading Native Nations. I’m your host, Verónica Hirsch. On today’s program, we are honored to have with us Professor Carwyn Jones, who is of Ngāti Kahungunu descent. Prof. Jones is a lecturer at the Faculty of Law, Victoria University of Wellington, is Co-Editor of the Māori Law Review, and maintains a blog, Ahi-kā-roa, on legal issues affecting Māori and other indigenous peoples. Professor Jones, welcome. Good to have you with us today. I’ve shared a little bit about who you are, but could please you tell us a little bit more about yourself.

Carwyn Jones:

Ok so, in Māori society we would identify ourselves by first and foremost saying we are mountaineers, my mountain is a mountain called Whakapūnake. We talk about our river; my river is a river called Wairoa and as you mentioned, my tribe, or my iwi, is Ngāti Kahungunu. Those are places on the east coast of the North Island of New Zealand, centered around a town called Wairoa. The town of Wairoa itself has about 8,000 people living there, about half of those are Māori, half non- Māori. A lot of the members of our tribe live outside their traditional territory, like myself. I live in Wellington and I have a beautiful wife, Nikki, and three beautiful children [Maori names]. I also really inform a lot of the way I think about Māori issues too.

Verónica Hirsch:

Thank you and I appreciate the fact that you acknowledge your homelands, your place, your space and also your family. I think that is important as indigenous people that informs a lot of what we do, so thank you for sharing that with us. I’d like to begin by asking some general questions regarding Māori governance and so I will begin with this question: How did Māori traditionally govern and did governance systems differ among various hapū and iwi?

Carwyn Jones:

So I think the important thing to think about in terms of Māori traditional governance is that it’s very much based around those traditional forms of social organization. So we often talk about the iwi as being the largest…sort of group or affiliation and then the hapū – in some senses it makes sense to think about the hapū more as the nation, because this was the form of social organization that…on a day-to-day, people operated with. The iwi tended in the past to be more of a confederation or alliance of hapū that would come together for various purposes. Now, that’s become a little more fixed and stratified today, particularly as the state government likes to deal with iwi and those large groupings, but you still see a lot of autonomy and certainly when Māori people talk about their governance, they often talk about their hapū live on. Underneath that, ‘hapū live on too’, there’s also what we talk about as being Whānau, and that’s extended family and those are also an important part of Māori social organization. So, Māori governance really operates at those different levels. There are things in which the leadership of the whānau have decisions and autonomy about, there are issues which leadership at the hapū level have decisions about and there are matters where people may come together as an iwi and defer to the iwi leadership. In terms of whether there’s a difference between different hapū and iwi, they have developed some theorizations and I think the kind of basic principles and ideas behind Māori governance recently extended across the different groups, but we see perhaps the most striking example of variation is the Kīngitanga, or the Māori King Movement, which developed really as a response to colonial forms of government and I think the two parallel colonial forms of government by establishing a Māori king. That was established in the mid-19th century and that continues today and is a very important part of the governance of particularly those tribes around the center of the North Island, the Waikato and Tainui peoples, they have incorporated that as a part of their government structures.

Verónica Hirsch:

Thank you. You mentioned how these differing levels of governance all exercised autonomy in different areas; so, realizing that these differing levels would likely – or I’m presuming here – would likely have different leaders occupying these roles. My next question relates to how those various leaders were selected and held accountable?

Carwyn Jones:

So the key concept really in terms of Māori leadership, both in terms of how they’re selected and how they’re held accountable, is a concept called mana and that’s really an idea of power, authority, respect and prestige – it incorporates all of those things. The important thing about mana is that there are different sources of mana. Everybody has a degree of mana, which comes from your ancestors and your ancestry. Everyone also has mana which comes from simply being human, from the Gods, so the kind of degree of human dignity and autonomy. Another key source of mana comes from your own personal actions and attributes and how you demonstrate your skills and abilities, including leadership abilities. At each of those different levels, leaders will be identified in part by looking at their ancestry and the sort of leading families. But not only determined by that, also determined by who has the skills and the abilities to lead. This works to provide accountability because what it means is that Māori leaders, it’s often said, have a very low level of executive authority and are highly accountable to the people because they need to continue to demonstrate their ability to lead. And if leaders are making decisions which are not good decisions or they’re not bringing their people along with them, they will soon no longer be leaders. The job of a leader in Māori society is very much to persuade, to bring the community along with them on their decisions. They cannot command or coerce their people. They may be deferred to in situations for example, of warfare or their skills and knowledge may be deferred to but they can’t command people. The Māori word for chief is rangatira and it comes from ranga, which is the idea of weaving, and tira, which means a group of people, so it’s the idea of bringing the people together, weaving the people together.

Verónica Hirsch:

Thank you. So, I’d like to ask a follow-up question to that. Thank you for explaining the responsibility that leaders have to the people. My questions is then, what responsibilities do the people have then to their leadership?

Carwyn Jones:

People have the responsibility of participating in decisions and usually there will be a number of leaders in a community. So, the leadership isn’t centralized just in the chief, or rangatira, but of course elders have particular leadership in terms of the knowledge and experience that they have accumulated. They have a responsibility to bring that to bare on issues that the community is facing. People also have an obligation or a duty to support the decision of the community. It’s very much a consensus decision-making model but once that decision has been taken, the obligation is to support that decision.

Verónica Hirsch:

Thank you. I’d like to transition into asking a couple questions about how traditional Māori law developed, how it is invoked, transmitted and enforced. As part of that, to relate it to how were internal disputes resolved?

Carwyn Jones:

Māori law is really based on a number of key or foundational principles. One of them is the concept of mana, and that is very important in terms of the accountability of leaders. Perhaps one of the most important is the concept of whanaungatanga, which is really about the centrality of relationships in Māori society. That involves ideas around collective responsibility but also the rights and responsibilities of individuals in relation to the community and vice-versa. There’s also the concept of utu, which is about balance and reciprocity. A concept of manaakitanga, which is the idea of nurturing and caring for others. And perhaps the other sort of two twin concepts that are important under Māori law are the concepts of tapu and noa. These refer to recognizing the spiritual dimension of all things. Tapu is about things that are very sacred or seen apart for some reason and the idea of noa is that the things can be engaged within an everyday kind of manner. So those key principles really independently drive the development of Māori law. Māori law is a quite flexible and pragmatic system so the idea is that in any given situation you try to give the best expression you can to those particular principles but that would very much depend on what the circumstances are. You will often be constrained; you won’t be able to give perfect expression to all of those at the same time. People may decide to give different weight to different principles and so you may end up with a different outcome even in different situations even if the effects of the case remain the same. It’s not a strict system of precedence as we would see in the common law; although, past action is relevant and important to coming to a decision about what to do. In terms of dispute resolution, those fundamental principles are very important and particularly the principles around utu and reciprocity and balance so that if there is a dispute that the issue will be, ‘Well what is necessary to restore the balance in the community?”. Also the idea of whanaungatanga, which is an ancient – that involves an idea of collective responsibility which means the community is involved in the dispute, it’s not just a dispute about individuals. Everybody has a stake in the outcome and the responsibility for resolving it.

Verónica Hirsch:

Thank you. You had mentioned how Māori law is pragmatic, is flexible and is committed to these ideals that support collective responsibility, reciprocity and maintaining what is sacred. And that is very different from introduced legal formats and so I’d like to transition to a series of questions on that topic. My first is, how has the 1840 Treaty of Waitangi impacted New Zealand’s legal system?

Carwyn Jones:

The Treaty of Waitangi is very important in terms of how Māori rights and issues are dealt with in the state legal system. Of course, in 1840 it was very important in terms of providing space for the state legal system to be introduced alongside the Māori legal system. Very much the idea of a sharing of public power was involved in the Treaty of Waitangi.  And so in terms of how its influence today – it’s very much part of New Zealand’s constitution. We don’t have a formal written constitution or a constitution that’s all written down in one place; we have a constitution which is made up of a number of different things, of statutes which might deal with that electoral system of constitutional conventions. The Treaty of Waitangi today is certainly seen as a foundational part of New Zealand’s constitution. Now, that doesn’t mean that  it’s necessarily easy to get adherence or to enforce the treaty through the courts. In fact, the Treaty of Waitangi has probably been used much more as a political instrument than a strictly legal one, but it has become the framework through which Māori rights are addressed.

Verónica Hirsch:

Thank you. You had mentioned that New Zealand does not have this – I’ll call it Constitution with a capital C – but that these documents that guide how the government functions are embedded in various areas and statutes, constitutional conventions in the like. I’d like to also ask you a question – and here I’m going to ask you to maybe compare and contrast the circumstances in New Zealand to those here in the United States – and my question is, what differences exist between Māori and U.S. tribes’ treaty-making histories within their respective political contexts? And are there differences in treaty condition adherence and enforcement, from your perspective?

Carwyn Jones:

I think maybe one of the key differences – or what is often perceived as being a key difference – is that we have…the Treaty of Waitangi is very much a national treaty; it covers all the Māori tribes in New Zealand. Incidentally, even those who didn’t sign the treaty; it seems to cover them as well. It’s very much a constitutional agreement. It doesn’t deal with any specifics about land alienation or those kind of things. It does provide an overall general prediction for Māori land as well as a whole range of other Māori rights. And so, it also, as I’ve mentioned before, operates very much in a political context largely. We have a system where…we’ve never had a system of reservations in New Zealand so there’s never been sort of formally state-recognized territory for Māori tribes. And that’s had an effect on the way in which Māori are able to exercise autonomy because there isn’t – you can’t say ‘we’re going to apply our laws within this particular boundary.’ Even in Māori society, the boundaries were very fluid and overlapping as well. And so what the way in which the treaty comes into play, in terms of usually trying to get government adherence or compliance with the treaty, is usually through a body called the Waitangi Tribunal, which we see happen in 1975 specifically to hear claims based on the principles of the Treaty of Waitangi. And that… that tribunal is essential; its not a court in the sense that it doesn’t make binding orders by large. It usually reports and makes recommendations to government.  Some of the important things about the tribunal are that it has, and has always had, roughly half of the tribunal members themselves, or the judges who are making the decisions, are Māori, roughly half non- Māori. It has a lot of flexibility in terms of incorporating aspects of Māori protocol and procedure into its own processes and so it usually sets in communities, in the meeting house of communities. That’s important in terms of both communities feeling that this is a body which is acceptable and respecting of their own ways, but it also has quite an impact on the way in which the evidence is received when you’re sitting in our meeting house, which has carvings of the ancestors of the particular community all around, it changes the way in which that evidence is heard. So, this tribunal has heard claims on a range of different issues. Its heard historical claims based on land alienation and natural resource issues but also it hears claims based more on contemporary crown policy and law. In the late 1980’s, it heard an important claim about the Māori language and found that there were positive obligations on the government to protect and promote the Māori language and that led to Māori becoming an official language of New Zealand. So, you could use it as a right in court or in any interactions with governments and those kinds of things.

Verónica Hirsch:

Thank you. You’ve done an excellent job of laying out the timeline of these series of development and the context in which these various events occurred. I’d also like a question regarding how the legal and political relationship between Māori and the government of New Zealand has developed over time, in light of some of the – I’ll say watershed – moments you just mentioned?

Carwyn Jones:

I certainly think the establishment of the Waitangi Tribunal in 1975 was extremely important and it did start to change the way in the Treaty of Waitangi was perceived in lore and politics in New Zealand. It gave an opportunity too for the ordinary courts to start using the principles of the treaty. We start to see the principles of the treaty being included in major pieces of legislation and some statutes. We start to see the ordinary courts making the government, in some situations, not all, but making the government at least take account of the treaty partnership and the treaty interests that are involved. Now, if government is engaging in policy that has particular impact on Māori, there will be an expectation that there is good faith consultation with Māori; that the government makes sure that it is informed about what the Māori community thinks about the issue, what Māori interests are in that issue and at least on a procedural level its taking the Treaty of Waitangi into account. I think really from the 1970’s onwards there started to be more of a recognition of the Treaty of Waitangi in law and policy, that recognition that the treaty really is a foundational part of our constitution. Now, we see, for instance, at the university I’m from, in terms of the university council, we’re just going through electing new council members and one of the things that – the kind of skills the council is looking for is people who have an understanding and commitment to the Treaty of Waitangi. You start to see it coming up in public institutions like universities and government sectors as well.

Verónica Hirsch:

You’ve mentioned how institutions like universities and the government sector are now acknowledging, and beyond acknowledging…taking very seriously, the Treaty of Waitangi; but, I’d also like to ask to what extent does the constitutional monarchy and parliament of New Zealand recognize traditional Māori law that predates the Treaty of Waitangi?

Carwyn Jones:

That is reasonably limited and I think this is an issue really that does need to be fully addressed if we’re really going to recognize the treaty partnership, then the state government needs to take much better account and recognition of traditional Māori law. At the moment, it’s very limited so there are opportunities through the New Zealand common law for Māori traditional law to recognized and enforced. The New Zealand courts have started to take that more seriously as well. We’ve seen a couple of issues recently, one of which went to the New Zealand Supreme Court and where the chief justice described the approach ought to be that Māori values are something that are taken into account and considered in the development of New Zealand common law. That’s going to open up some important developments in that area. We do also have some statutory recognition of some Māori concepts so perhaps one of the most important ones is in our Resource Management Act, which deals with environmental planning and consents for activities on land use. One of the factors that has to be taken into account by anyone exercising functions under that act is the Māori concept of kaitiakitanga, which is a Māori concept of guardianship and stewardship. I think that’s important because it’s not just saying, ‘you have to take into account Māori guardianship and stewardship’ but you actually have to take into account the Māori concept. Now, the way in which that’s been done hasn’t necessarily been perfect, but it is an important statement about what is attempted to be recognized as a traditional Māori law concept.

Verónica Hirsch:

Thank you. I’d like to transition now into asking how and to what extent do Māori traditional governance structures, many of which you’ve kindly outlined for us, and/or practices exist and operate today and whether we’re talking about in a legal context, as you’ve explained or in any other context? Perhaps as relates to some of the roles or responsibilities that you’ve previously mentioned when it comes to leadership?

Carwyn Jones:

I think that there a couple of levels in which we see Māori traditional governance structures operating. We certainly see a lot of internal operations of a community being informed and guided by traditional Māori ideas. If you go into a Māori community, if you go onto our – what we call our marae, so it’s the Māori community spaces where we have our meeting houses – the protocols and the ceremony and the activity is really all regulated by Māori law within a very Māori context. You see the people who have responsibility for managing that are the kind of people you would expect traditionally to have that role, so elders play a very important role in managing and monitoring those processes and protocols. Outside of that, its very much more limited; but, I think we are beginning to see Māori governance. Institutions start to come to the fore a little bit more as we go through a process at the moment of settling the historical claims based on the Treaty of Waitangi. With those settlements, any group who settles their claims will be required to establish a government entity to receive settlement asses, to manage the settlement. As part of that process…again, it’s still constrained by what the government will accept in terms of a government entity and the government has these requirements around them being representative, accountable, transparent and has particular ideas about what they understand representatively, accountability, and transparency to mean. Also, you see Māori communities in the process of developing their post-settlement government entity really try to look to their traditional forms of social organization and those ideas are still very strong. We still very much identify with our hapū, with our iwi, with our marae, so those forms of organization are still very much alive and are beginning to become reflected in the kind of formal government entities that we are seeing coming out of these settlements.

Verónica Hirsch:

Regarding the Māori formal governance entities, to what extent does Māori culture impact leadership roles that individuals within those Māori formal governance entities have, especially in regards to their decision-making processes?

Carwyn Jones:

I would say not enough but I think there are certainly attempts to bring more Māori traditional ideas and processes into those government entities. Now, one of the things you see quite often is these government entities providing a specific role for Māori elders. You might see, as a committee of the government sees to it, you might have a committee of elders and they might have responsibility for any questions regarding maintaining the language and cultural traditions of the group. They might also have particularly responsibility for addressing disputes about membership because they are seen to be the ones who have expertise and the kind of genealogy of the group and who are able to make decisions around membership. So you see those kinds of roles being allocated often to a group of elders. Dispute resolution is another area where you can see these entities trying to incorporate or reflect their own traditions more. Often, it’s left relatively open; it’s nothing something that’s prescribed in the constitution of the government entity but might be given to a dispute resolution committee to determine its own process and procedures. Again, often that dispute resolution committee will either be the committee of elders or will involve membership from that committee of elders to try and inform how that dispute ought to be resolved according to their communities own traditions and processes.

Verónica Hirsch:

You’ve mentioned how committees of elders might be called upon to answer or address or decide on questions of membership, could you please expand upon that a little bit more? How does each hapū, each iwi determine who its relatives are?

Carwyn Jones:

So we have quite a flexible system of membership and that is consistent with Māori traditions. It’s very much dependent on your genealogy, but you have some flexibility in determining how you choose which lines of your genealogy you emphasize or you affiliate with. Its not uncommon for people to choose to affiliate with one particular ancestor in one circumstance and another ancestor in another circumstance. That’s acceptable and legitimate in Māori traditions and continues to be the case as we move into post-settlement government entities that you would expect many Māori would be a member of one government entity and also a member of another one as well, so more than one. That’s seen as being acceptable. Where there are disputes about membership they will largely be questions of, ‘Can you identify your links through the genealogy to the particular ancestor that this group has identified as being important for their own collective identity?’ So that is where the elders who have expertise in their genealogy will be able to make those decisions.

Verónica Hirsch:

Thank you. I’d like to transition a bit and talk about the contemporary relationships between hapū and iwi. So my question is, how do contemporary hapū and iwi relate to each other and exercise governance? Part of that question as well is, we’d like to understand if and to what extent hapū and iwi have distinct or overlapping areas of governance authority? And also, how do various and distinct hapū and iwi communicate among themselves?

Carwyn Jones:

These are the kinds of issues that really do come to the fore when we’re talking about developing our post-settlement government entities because we’re often talking about many different hapū coming together in a single government entity to make decisions. So, there’s a question of how much autonomy remains at that hapū level and how much is organized at the overarching collective. I think there are no hard-and-fast answers as to how that works. I know in my own community when we’ve been talking about these issues, one of the things which comes up a lot is people saying, ‘Well our hapū has a particular connection to this part of the river so we want to have control over anything that happens in this area and have a say here.’ The way I see that being dealt with certainly – informally and traditionally – is that other groups, other hapū acknowledge that and don’t dispute that we have a particular connection here. Also, these other hapū are our relatives, they might also have an interest in what we’re doing here. The way that, informally, these things tend to play out is that if the government were to propose something that was going to affect that part of the river, they might come to the larger entity and consult the larger entity. But, everyone in that would say, ‘This is the hapū, this is the group that has the particular responsibility here. They are the people who ought to really have a say.’ So these things tend to be managed quite effectively, informally. I think actually when we start to try and set those formal rules around it, people become more anxious about how that’ll work. In the same kind of context, one of the other pieces of work I’ve been involved with is a Māori constitutional working group where we’ve been engaged with talking to Māori around the country about what their constitutional aspirations are in terms of a constitution for New Zealand. One of the consistent pieces of feedback we get is that people very much want to retain a high level of local, hapū autonomy but do want to participate collectively in decisions that affect us all. The analogy that a lot of people have used as a kind of United Nations style idea is that people don’t give up their own autonomy but recognize that there are important things that we need to discuss together and work on as a collective.

Verónica Hirsch:

On that topic of the Māori constitutional committee that you just now mentioned and as you shared with us earlier that in fact New Zealand does not in fact have a constitution per say, I’m fascinated by the fact that this work is happening. I’d actually like to ask some questions on that topic. So as you mentioned, it sounds like you and colleagues have then been traveling to various hapū and different regions to ask, to solicit, their input about what their vision is, how they would articulate their vision, however many generations into the future, and how that would then inform, or to what extent it would inform this proposed Māori-wide constitution? Could you provide a bit more story about that? What prompted the creation, the formation? I can imagine many things happened at kitchen tables. What then led to a coalescence of people who are engaged in this work and then making the effort to travel to various communities to solicit input?

Carwyn Jones:

The real key event that took place was there was a large national meeting of Māori, which was discussing various issues including the treaty settlement process, a whole range of issues affecting Māori. One of the sort of … very prominent and recognized leaders amongst Māori, he suggested that if we address each of these issues as they come up, we’re also going to be fighting this reactive fight, we’re going to be doing this again and again and again. Actually what’s needed is a kind of structural change, a constitutional change that provides for Māori autonomy and input into the decision-making of the national state government. At that meeting, they appointed a couple of people to convene a panel or committee to progress this work. The committee itself was made up of representatives from different tribal groupings but also had people who had particular expertise on lore, policy, and political science and related issues to constitutional matters. The person who was really – who led this committee was a person called Moana Jackson. He happens to be from the same iwi as me, from Ngāti Kahungunu, and he’s been – for many years – a very prominent advocate for Māori. His background is also as a lawyer and he really led this committee. We decided on our approach that first of all our job would be to listen to Māori communities and try to get as much information from as many different types of Māori groups and individuals as we could about what their constitutional aspirations may be. Now, over the course of a couple of years there were over 200 meetings held with different Māori groups. I only attended a handful of those that were in my community, but Moana essentially went to almost all of those and so he was really traveling on the road for a couple of years. We’re talking to different kinds of Māori communities so there were meetings which were based around traditional kin groups. There were meetings which were based around other types of Māori organization so Māori student organizations, Māori Peoples with Disabilities Association, Māori people who are in prison. We had, alongside the main committee, we had a group of Māori young people who were also going out and talking to Māori young people about these issues. I have to say that they had a much more dynamic and exciting presentation and discussion than the rest of us did. Even though I only went to a few of these meetings, they were really, I found, inspiring because we were talking to Māori communities and we would have a range of people come and participate in this conversation. Old people, young people often coming out on a cold winter’s night to talk about constitutional issues, which impressed me. Once the conversation started, it was clear that these were issues that people had been thinking about and talking about for a long time so there was a very rich and informed discussion that came out very quickly in those meetings. They didn’t necessarily use the language of constitutional law but in terms of being able to have input onto the things that mattered in their lives and have control and autonomy and decision making powers, these were the kinds of things that people were concerned about and had been thinking about very deeply.

Verónica Hirsch:

In the course of these meetings, and I realize that you were personally only able to attend a few of them as you mentioned specific within your home community area, but I wanted to ask from your perspective, how was any level of resistance to this idea of a Māori constitution at that national level? How was that addressed, explained? And if you could also educate us a bit about how individuals who were part of this panel worked among themselves to devise a standard set of questions or even discussion prompts? Realizing that there a various meetings and it’s really noteworthy that the meetings around various groups…they sound very intentional. Likely, I would presume to address issues that are of immediate importance and pertinent to these various groupings. With that being said, from your perspective, how has any concern, perhaps raised over, ‘Are we sacrificing a measure of our autonomy by agreeing to either help create craft and potentially be governed or recognized the legitimacy of such a document?’

Carwyn Jones:

Generally, I don’t know if we got that kind of resistance in these meetings. People were very keen to ensure that that kind of local autonomy was respected and taken into account in the development of a constitution. I think perhaps the main resistance that we got was around issues of people initially saying, “Well this is not realistic.’ But actually, we were able to talk through that issue and say ‘Well part of the process that we’re going through here is that we don’t want to be limited in thinking about what we’re doing by the current framework. Sometimes it’s difficult to take that initial step but we discussed, we talked about what we meant by a constitution and we talked about traditionally the types of forms and processes that people are very familiar with and we’re really just talking about a set of rules and practices we agree upon that we’ll use to govern ourselves. People quickly got the idea of that and people also did quite quickly move from being limited by the ideas of the current framework to kind of more blue sky and imaginative thinking, which I was really pleased about. We did have a series of questions that we used to try and prompt the discussion. Those were often questions to do with what kind of values people would like to see in the impending constitution. So very much moving from starting off with their values base and then thinking about what kind of mechanisms might give expression to those values rather than moving straight to ideas about well who ought to be able to vote and what a parliament might look like and those kind of things. Starting from that value base and to some extent it wasn’t a surprise that the kinds of values people talked about were the kinds of things that I had mentioned earlier in terms of mana, utu, whanaungatanga those ideas around reciprocity, power and prestige and respect for others, around the centrality of kinship relationships and collective action. So, we worked through those discussions and as I said, people were really ready to have that conversation, that discussion, and were really able to identify very quickly what they saw as being flaws in the current system and thinking about how to address those.

Verónica Hirsch:

Is this work on this envisioned Māori constitution ongoing? Part of my reason for asking that question is realizing Moana Jackson, who you mentioned previously, who really invested himself and has been very key to this effort. If in fact this is an ongoing process, are there new people added to the panel or people who have said, “I’ve been able to commit up to this point in this process and now it’s perhaps time for another person within the community who might be appropriate to be appointed’? And how is that maybe addressed, discussed? Is it still, again maybe, addressed on an informal basis? Not necessarily someone is vying for a seat for instance on the panel, could you speak to that a little bit more? This process, where it’s at, is it ongoing? How folks who have decided to commit themselves to this work, to what extent they stay and if there’s opportunity for new people to come in and lend their expertise?

Carwyn Jones:

It very much is an ongoing piece of work and we’re at the process now of collecting up all the feedback we’ve received from these different meetings that have happened over the past few years and trying to bring that together to inform the development of a constitutional model. One is very much still taking a lead on that work but supported by other people who have been involved in the process and also the young people we’ve had working with us have played a key role; part of this process too is about making sure that they remain involved and engaged in what is going on. This has also led to some connected projects and work around, for example, Māori participation in monitoring our government’s implementation of the UN declaration on the rights of indigenous people’s. There’s been an opportunity for both people who’ve been involved in the constitutional working group but also others to get connected to that kind of work through the more international indigenous rights framework as well. It is ongoing and the intention is that we try to have our mind keep an eye on that kind of succession and how we make sure that different people are involved and engaged and become more involved in different aspects of the work that’s going on. There’s also some work in terms of what we ask the different tribal groups to suggest people to be involved in this work or endorse people to be involved in that work. As the nature of the work is changing, those people that the tribe’s want to be involved might also change. For example, when we were very much in the phase of community engagement, it was very important that we had tribal representative who were very much on the ground and connected to their communities, often elders that were very much the heart of those communities. As we come more to the writing-up work of this process, we need people with different kinds of skills to be involved.

Over the course of this year, we’ve had a kind of discussion document. Drawing on the feedback we’ve received, that’s led us to draw out some key points that people have raised and to try and get some more discussion around some particular issues. There’s been some discussion and more focused interviews and focused group discussions around those particular points. The intention is that in February of next year in time for Waitangi Day, which we celebrate on the 6th of February, that we will be able to present a model constitution and that it will be presented at the celebration of Waitangi for further discussion.

Verónica Hirsch:

Thank you. My last question Dr. Jones, pertains to some of these aspects that you’ve mentioned previously and throughout our discussion today. I realize that your answer to this will likely be ongoing as the work is ongoing but I’m going to ask it nonetheless. What ‘full and final’ treaty negotiation challenges do contemporary hapū and iwi face?

Carwyn Jones:

I think there are many challenges that iwi and hapū are facing in the context of these treaty settlements. Personally, I think there are number of quite fundamental flaws with the way the settlement process is set up. I think the very fact that it’s based on the idea of being ‘full and final’ settlements is almost predicated on the idea of extinguishing your rights to be able to make claims under the Treaty of Waitangi is problematic. But, there are also the kind of ongoing questions around representation and participation in those governance and the government entities that are going to be managing these settlements. Many of our Māori communities are in very urgent need of better social services, of better employment, of better health, better housing. So, all those issues are not going to be resolved by these treaty settlements. I think the challenge for tribes in engaging in this settlement process is how to use the platform that the settlement provides as a mean for engaging further with government and others in partnership to work on some of these issues and using them as platform for starting to exercise their self determination more effectively. Now, I think the settlements by themselves, the value of the settlements is far too small. I think the fact that the settlements don’t really engage in a serious way with Māori law and Māori legal traditions, I think all of that is problematic. That means that they don’t, by themselves, provide for self determination but the challenge for the tribes is to make sure that they try to use them as a platform to develop and progress towards better self determination.

Verónica Hirsch:

Thank you, thank you so much Dr. Jones.

Carwyn Jones:

You’re welcome.

Verónica Hirsch:

That’s all the time we have on today’s episode of Leading Native Nations. To learn more about Leading Native Nations please visit NNI’s Indigenous Governance Database website, which can be found at www.IGovDatabase.com. Thank you for joining us.

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