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WITHIN CROWN POLICY

3.3 Biculturalism

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1999). It was briefly replaced by integration policy launched through the Hunn Report, which was also abandoned in the face of concerns about the Crown’s role in creating and sustaining disadvantage. Prime Minister, Right Hon. Norman Kirk (1974, p. 2691) explains the official move away from integration:

So far as the majority and the minority are concerned, integration is precisely what cats do to mice. They integrate them. The majority swallows up the minority; making it sacrifices its culture and traditions and often its belongings to conform to the traditions and culture of the majority.

I assert assimilation traditions continue to hold some currency in contemporary public policy practices in New Zealand. Assimilationist notions of ‘one size fits all’ policy and the denial of the relevance of indigenous culture to policy development are explored within the context of contemporary health policy in chapter eight.

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Various models and approaches have been developed to conceptualise bicultural structural arrangements and ways of working. Durie’s (1994b, pp. 103-104) work on bicultural continuums explores both bicultural goals and structural arrangements. He identified bicultural goals ranging from the acquiring of cultural skills and knowledge, better understanding of indigenous issues, and stronger indigenous networks, through to improved outcomes for indigenous peoples and ultimately joint ventures between indigenous and non-indigenous within an agreed upon framework. Figure 6 below shows an adaptation of his conceptualisation of a range of structural arrangements that variously ignore and embrace the power-sharing inherent in biculturalism.

Figure 6: Bicultural Continuum of Structural Arrangements

Adapted from Whaiora: Māori health development. (p.104). M. Durie, 2004, Auckland, New Zealand: Oxford University Press. P.104. Reprinted with permission.

A growing awareness of both individual and collective human rights remains an international backdrop to the emergence of biculturalism. The successful adoption of ICERD (United Nations, 1965) marked a growing global awareness of the polemic of racism in part influenced by the civil rights and black power movement within the United States. This change in focus of race relations saw increased government efforts to address historical structural disadvantage to promote equity between ethnic groupings (Spoonley, 1993).

Biculturalism and Te Tiriti o Waitangi

In Aotearoa/New Zealand this new relationship is being forged under the existing infrastructure, which is itself a product of colonialism based on a unitary sovereign; the Crown (Rumbles, 1999, p. 2).

Crown resistance to recognising and addressing Te Tiriti o Waitangi and/or Māori sovereignty has been a recurring theme of Māori and Pākehā relations since 1840.40 Long standing advocacy by Māori and some Pākehā was rewarded in the 1970s and 1980s, with a growing groundswell of recognition and consensus that the Treaty (unspecified text) was the founding document of New Zealand (Durie, 1994b, p. 99). This changing political climate saw the emergence of biculturalism

40 The major Ngā Puhi claim, Te Paparahi o te Raki (WAI 1040) currently before the Waitangi Tribunal directly addresses issues surrounding the denial by Ngā Puhi that they ever ceded sovereignty to the English.

Unmodified mainstream institution

indigenous An perspective

Active Indigenous involvement

Parallel Indigenous

institution

Independent Indigenous

institution

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as a new policy approach to race relations. This growing awareness opened up the possibilities of unwinding what Spoonley (1993, p. 69) calls “the debilitating dominance of Pākehā values and their monopoly of institutional power”.

Central to the dynamics of biculturalism within Aotearoa is Te Tiriti, as this Covenant articulates the status and rules of engagement between Māori and the Crown. Despite the multiethnic demographics of Aotearoa, the biculturalism partnership remains paramount due to Te Tiriti o Waitangi. The Crown has responsibilities for all New Zealanders but must also protect the interests of Māori as their treaty partner (Durie, 1994b).

State enactment of bicultural policy has been multi-dimensional. It has included both the establishment of the Waitangi Tribunal as an attempt to resolve historical injustices and the development of Crown-defined Treaty principles to aid its contemporary application. Other elements of bicultural philosophy, which retain currency, as introduced in Te Urupare Rangapu (Minister of Maori Affairs, 1988), include a two-pronged strategy: the development of a more responsive public service and the devolution of program delivery to Māori providers. The State Sector Act 1988 also required all government departments to establish plans

“...which include a commitment to the principles of the Treaty of Waitangi, biculturalism and delivery equity to Māori” (Patete, 2008, p. 14).

Kelsey (1990, p. 267) amongst other critics contends biculturalism as practiced by the Crown is not transformative rather a “...more culturally sensitive form of assimilation”. Elements of bicultural policy are explored in the subsequent sections.

Resolving Historical Injustices: The Waitangi Tribunal

Passed while the Māori land march41 was en route to Wellington, the Treaty of Waitangi Act 1975 was the first, and arguably the most important of many pieces of legislation in modern times to consider formally either text (Barrett &

Connolly-Stone, 1998). It specifically established the Waitangi Tribunal as an institutional response to resolving historical injustices. The Tribunal was created as a permanent Commission of Inquiry, charged with investigating and making recommendations on claims brought by Māori relating to policies, practices actions or omissions of the Crown that allegedly breached either text (Human Rights Commission, 2007). Since 1985, the Tribunal has been granted the powers to review retrospectively historic breaches dating from 1840, as well as contemporary infringements.42

41 Led by Whina Cooper the land march involved a large group of Māori and other New Zealanders walking the length of the North Island to Wellington to protest against Māori land loss.

42 In addition to having the responsibility to define treaty principles the tribunal is: “...empowered to have exclusive authority to determine the meaning and effect of both the Māori and the English text of the Treaty” (Williams, 2001, p. 103).

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The Tribunal’s findings carry considerable weight and have helped to establish the Treaty of Waitangi as an important constitutional document.43 However, the findings are not binding on the government. For example, in passing the Foreshore Seabed Act 2004, the Labour-led Coalition government acted against the advice of the Tribunal (Waitangi Tribunal, 2004). The Tribunals’ powers and scope of practice have been discussed in reports from the United Nations. For example, the Committee to Eliminate Racial Discrimination (CERD) (2007, p. 4) have recommended that the New Zealand Government grants the Tribunal binding powers to adjudicate treaty matters. No action has been taken to date on these recommendations.

The practicalities of the Tribunal process are long and onerous with turn-around times on claims up to decades long, due in part to what M. Jackson (2000) identifies as chronic understaffing of the Tribunal. In historical cases, Tribunal processes are complicated by decades of haphazard Crown practices and policy including the return of land to Māori with no whakapapa connection to a particular piece of whenua. Successive governments have attempted to fast track the process by putting deadlines on Māori to lodge claims and have tried to establish a fiscal cap44 on the total pool of settlement funding (Fleras & Spoonley, 1999, p. 132). These periodic hurry-ups are often motivated by conservative Pākehā concerned at the amount of resources going into settlement and reconciliation processes (Spoonley, 1993, p. 87).

In actuality, the settlements to date equate to approximately 2% of the value of the claims (Rumbles, 1999, p. 13).45 The Crown retains and benefits from the remaining 98% of the resource base taken from Māori. Rumbles (1999, p. 13) argues that the Crown retains control throughout the settlement process, determining whether they accept the existence or the extent of treaty breaches or deciding “who will come to the negotiation table, what will be negotiated and how it will be negotiated”. He argues that the process protects Crown unitary sovereignty and therefore fails to address the substance of fundamental Māori claims of tino rangatiratanga. At a consultation meeting around the fiscal envelope Anderson, (as cited in Gardner, 1996, p. 125) puts it succinctly:

By whose law does a thief get to steal a car, admit later that he has stolen it, then decide when, how, and what part of the vehicle he will give back to the owner?

43 Bargh (2007, p. 26) contends the settlement process diverts attention from the wider issues of constitutional change.

44 The fiscal envelope was a 1995 National government initiative that proposed limiting the total amount spent on Treaty of Waitangi settlements to one billion dollars.

45 Take the particular instance of the Ngai Tahu settlement in 1998. Ngai Tahu accepted $170 million as full and final settlement and O’Regan their lead negotiator stated the full value of their South Island claim was about $16 billion (Consedine & Consedine, 2001, p. 204).

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The transfer of resources and whenua through the Waitangi settlement process has enabled some economic development and independence for those participating hapū and some reconfiguring of relationships with the Crown.

Crown Invention of Treaty Principles

The Special Rapporteur observed that the Treaty’s principles appear to be vulnerable to political discretion, resulting in their perpetual insecurity and instability (Anaya, 2010a, p. 3).

Kelsey (1991, p. 123) maintains the judicial rewriting of New Zealand’s founding document began in the 1987 with the Court of Appeal proposing ‘Treaty principles’ rather than the Māori text forming the basis of Crown-Māori engagement. Others cite the 1980s when the Labour government commenced “...a deliberate and cynical move to redefine the Treaty” (R. S. Hill & O'Malley, 2000, p. 23). Certainly, the Royal Commission on Social Policy in 1988 and the Labour government in 1989 both developed separate Treaty principles complimenting those developed by the Waitangi Tribunal (Te Puni Kōkiri, 2002).

Assorted legislation pertaining to education, energy, State-Owned Enterprises and the health sector all contain generic references to Crown-defined Treaty principles. This has created a snowball effect operationally across government, where departments “each in their own way, interpreted the Treaty principles in relation to their spheres of activity” (Hudson & Russell, 2009, p. 62)46. Appendix H, drawn from the work of Hayward (1997) writing for the Waitangi Tribunal and others, pulls together a complex web of the most widely utilised Crown-defined Treaty principles.

The Royal Commission on Social Policy’s (1988) principles of partnership, participation and protection remain the most prominent and well known of the Crown-defined Treaty principles (Anderson et al., 2006). Partnership within this context often refers to the dynamic relationship between the Crown and Māori as treaty signatories. Participation relates to Māori engagement within a particular sector or activity, while protection relates to the Crown’s article three responsibilities to guarantee Māori the same ‘rights and privileges’ as other New Zealanders.

Although the development of Crown-defined Treaty principles has opened up debate47 about the application of the Treaty of Waitangi and provided a direction for Crown officials they remain problematic. This polemic emerges because as Kingi (2006, p. 10) correctly identifies that nowhere within either text are principles mentioned. So if the Treaty principles are a revitalisation or

46 C. Jones (1999, p. 52) during a sabbatical confirmed this observation noting, “Each agency I visited had its own interpretation of the Treaty, its own Treaty framework and its own commitment to understanding and addressing Treaty obligations”.

47 As recently as 2006, New Zealand First MP, Woolerton (2006) fronted an unsuccessful private members bill to have all references to treaty principles removed from New Zealand legislation.

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refreshment of Te Tiriti o Waitangi why were both sovereign treaty partners not involved in this process? Durie (1994b, p. 85) notes that:

Māori, placing greater emphasis on the actual words of the Treaty, have never been entirely comfortable with a focus on principles, sometimes because the definition of principles has been left to the Crown, acting on its own.

Building a Bicultural Public Service

According to Former Prime Minister, Right Hon. Geoffrey Palmer (1992, pp. 82-83), by 1986 the Labour Government had promised that all future legislation referred to it would consider the implications of the Crown-defined principles of the Treaty and departments should consult Māori on its application. This decision meant that despite incomplete understanding of the theory and practice of biculturalism, it became part of public service rhetoric and a goal for all government departments by the mid-late 1980s (Durie, 1994b, p. 104). This was reinforced with the introduction of the Royal Commission on Social Policy’s (1987) Treaty principles.

Durie (1998, p. 11) argues that from the mid-1980s, Aotearoa embarked upon a radical process of societal change. He maintains that in the state sector an extensive series of state sector reforms reshaped the structures, institutions and processes of the public service. Durie (1993b, p. 4) upholds that “partnership became the catch-call” and there was a concerted effort to strengthen Māori participation and introduce a cultural element into the public service. Departments adopted various approaches to address biculturalism including kaumātua advisors, Māori advisory committees, Māori policy units, Māori sections, Māori managers and Māori designated positions (Durie, Fitzgerald, Kingi, McKinley, &

Stevenson, 2002).

The health sector was amongst the first to take up the challenge of the Treaty of Waitangi and biculturalism. Durie (1994b) asserts Director General of Health Salmond’s 1986 memo to all hospital boards in part motivated this focus and area health boards which recommending that the Treaty of Waitangi be integrated into health services. Salmond explained:

For the Department of Health, the Treaty has special significance.

Concepts of health are firmly based in Māori culture (which according to the Treaty has a right to official recognition and protection) and Māori people have a right to appropriate services-funded through our health system. (p. 86)

By 1987, the Standing Committee on Māori Health (1987) had recommended that a number of health services be taken over by Iwi Authorities, leading to the establishment of by Māori for Māori health services.

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Spoonley (1993, p. 65) notes that these initiatives occur despite the Crown in its various forms having been a major factor in the alienation of Māori land and culture, and “...to expect a major reversal in this role would seem unduly optimistic”. As detailed in chapter four, the release of the Puao Te Ata Tu (Ministerial Advisory Committee, 1988) and He Whaipānga Hou (M. Jackson, 1988) (on deficiencies in the criminal justice system) were a huge embarrassment, exposing the lack of bicultural change within the public service. Some remedial actions were subsequently initiated to address some of these failings.

The Limitations of Biculturalism

Many Māori, who have never wavered in their resolve to reclaim rangatiratanga, have often brought critical interpretations to Crown-Māori policy. Durie (1995) holds that Māori policy has been developed through different stages “with remarkably little input from Maori, except for the rubber-stamping of proposals already formulated on their behalf”. Despite the gains of bicultural policy, Māori critics have raised a variety of concerns primarily focussed on the failure of biculturalism to deliver power-sharing between the Crown and Māori as treaty partners.

Some critics have seen biculturalism as reflected in Crown policy as a something of a ruse, a parlour trick of smoke and mirrors. Political commentator, O’Sullivan (2007, p. 18) contends biculturalism is “a tool of coercion developed to assist the state to retain colonial authority in a new political and legal environment where assimilation is no longer acceptable”. He contends Māori hold only a minor role within Crown-defined bicultural power-sharing, in modifying state institutions to make them more palatable for Māori. M. Jackson (1995, April) argues that despite the appearance, the illusion of change, underlying power relationships have remained unchanged.

In a similar vein, other critics have seen biculturalism as tokenistic, window dressing with the inclusion of Māori advisors and policy analysts masking Crown resistance to power-sharing. Walker (1986, p. 5) clarifies that bicultural partnership to him implies “...more than Pākehā learning a few phrases of Māori language and how to behave on the marae... It means they will have to share what they have monopolised for so long, power, privilege and occupational security”. 48 Historian Temm (as cited in D. O'Sullivan, 2003, p. 4) goes further to illustrate the point:

A letter written by some civil servant that is culturally offensive is not cured by the fact that it appears under the letterhead of a department of state, which also describes itself by a Maori name.

48 A marae is the gathering place in front of the meeting house.

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Assorted statements by Ministers of the Crown have confirmed Māori suspicions about the Crown’s limited commitment to power-sharing based biculturalism.

Correspondence from the then Minister of State Services (as cited in Fleras &

Spoonley, 1999, p. 126) confirms:

...the government retains ultimate responsibility in respect to the welfare and development of the people, to the machinery of Government, and indeed the expenditure of public funds.

Former Minister of Treaty Settlements Hon. Doug Graham (1997, p. 41) concedes:

...that ultimately it is the government who must set limits and establish agendas...Maori-Crown relations can only be considered to be like a partnership, rather than a partnership per se, since a real partnership would imply some kind of joint sovereignty, with veto rights vested in each party as a matter of course.

A fundamental limitation of biculturalism to date lies in the unwillingness of the Crown to recognise Māori sovereignty. Likewise the “meanness’ of resource distribution remains problematic with the Crown retaining substantial

“...resources that lawfully belong to Tangata Whenua but which the government unlawfully usurped” (Fleras, 1991, pp. 186-187). Biculturalism also appears to have failed to address the substantive disparities between Māori and Pākehā revealed in the Hunn Report of the 1960s, which remain a reality into the twenty first century (Robson & Harris, 2007).