Month: December 2014

Disunity as the year comes to an end for the Māori Party?

Te Karere reports that Tariana Turia is furious over Te Ururoa Flavell’s Whānau Ora housing decision:

“The newly-appointed Minister for Whānau Ora has come under attack from the person who setup Whānau Ora and the party he currently leads. Tariana Turia is angry that the co-leader of the Māori Party Te Ururoa Flavell has overturned a decision she made in July to give millions of dollars for social housing to Māori. Te Karere understands the money, intended to be managed by Māori, will now be administered by a government agency.”

Of note, the headline is a little misleading since the decision was not advanced by Flavell and after watching the interview, Turia seems disappointed more than she is furious.

The issue: Flavell has supported Housing Minister Nick Smith in abandoning the previous Māori housing policy which would have seen Te Pou Matakana (an independent Māori organisation) administer $25 million to coordinate Māori housing.

The decision: to transfer this responsibility of Māori Housing to Crown entity Te Puni Kokiri.

As the architect of the previous policy, it is unsurprising that this move has upset Turia. Mainly because it seems to contradict the objectives of Whānau Ora to create rangatiratanga for Māori as opposed to micromanagement by the State. And after scrolling through the feedback on this decision, Turia’s criticism appears to resonate with a sizeable proportion of Māori Party supporters and Māori more generally, including myself.

To be clear, I have much respect for Te Ururoa Flavell. This post is not about trampling on his mana. And I suspect that was not Turia’s intention either. Rather, it is acknowledging that as a Minister of the Crown, his decisions will be scrutinised even by his wider support networks, and that critique is a healthy part of the democratic process. One thing to be mindful of is that Flavell is bound by collective responsibility in his portfolios and must represent the government’s position in relation to his ministerial responsibilities.  This was made clear when the Party members and supporters voted in favour of the relationship accord. It is the primary reason the membership supported Co-Leader Marama Fox as an independent voice in Parliament. That outside cabinet position is intended to give Māori a voice and provide an avenue for criticism of decisions that Māori believe are not in our best interests and do not  steer us toward tino rangatiratanga.

Why the abandonment of Māori governance in favour of State management of Māori housing? Money.  According to Turia:

[If] they were worried about the amount of money, which is what they told me, worried about the amount of money for administration, they could have put that in the contract.

The reason supplied to Turia is a major cause for concern. It explicitly says that the Crown do not trust Māori to manage our affairs. In my view, it is both a condescending and oppressive attitude that intensifies ingrained views of Māori as ‘needing to be civilised’. Moreover, it imposes a view of Māori criminality (i.e. Māori organisations cannot be trusted to act legally or appropriately with significant sums of money) and is further evidence that the heavy chains of colonisation are still firmly in place.  There are, of course, clear instances of the mismanagement of funds within Māori organisations. However, this is not unique to Māori and flagging it as a reason for ‘State’ retention of control entrenches the perception that the behaviour of the few is reflective of the entire Māori population.

The government talks about its role  in creating an enabling environment for Māori. This is language drawn from international trade policy, in particular, the WTO. Unfortunately, the way it is being employed in NZ is eerily similar to the way the developed countries advocate the enabling of developing and least-developed countries but in reality have sidestepped their obligations.

 In response to Turia’s criticism, Māori Party President, Naida Glavish made the following comments as reported on Twitter by Te Kaea Journalist Maiki Sherman:

@MaikiSherman  writes:

Māori Party president Naida Glavish tells former co-leader Tariana Turia to “let go” following her public criticism of Te Ururoa Flavell.

“We would all hate to see Whaea Tariana detract from her own mana and spoil her distinguished record of service to our people and our party”

“It was her own decision to leave Parliament, which necessarily meant passing over the reins to her successors” – Naida Glavish.

Tariana Turia criticised a decision to change administration of funding for Maori social housing to Te Puni Kokiri.

Naida Glavish says the decision was made by Nick Smith, based on a Cabinet decision, on recommendation by the Auditor General.

Apart from the Māori Party’s embarrassing public spat, this also shows they’ve been railroaded by Cabinet. #RelationshipAccord

In my view, Turia’s criticism was not overstepping the boundary – it was a legitimate concern. As a founder of the Party and a key architect of Whānau Ora, it is understandable that she would express her views about its future in light of the decision made. The question asked of her: ‘What message do you have for Te Ururora Flavell?’ was provocative and seems to have baited the Party into a public war of words. Inadvertently implying a disunity that does not, in fact, exist.  The Party will need to mindful of how easy but also harmful it is to conflate legitimate criticism with personal attacks going into 2015 and beyond.

Addendum:

Link to Māori Party Press Release here re: Maiki Shermans commentary on Twitter.

Advertisements

The Greens get a little personal

I like the Greens. A lot. Their predilection for social and environmental justice and commitment to clean politics was something that set them apart from the other two main parties toward the end of the 2014 election campaign. So naturally it seemed out of character for Metiria Turei to make what might be construed as a deeply offensive personal remark in her public condemnation of  Tutehounuku (Nuk) Korako (National), as the newly appointed Chair of the Māori Affairs Select Committee (MASC).

In context, Turei was making valid constructive criticisms about the changes to the MASC under the National government. She raised three fundamental concerns.

(1) Scheduling debates on Treaty bills at the same time as the MASC meetings. This is an entirely justified concern, because surely any Te Tiriti issues fall within the scope of Māori Affairs.

(2) That National are wasting the MASC time by not pulling the Te Reo (Māori Language) Bill, despite the Minister of Māori Development establishing an independent advisory group.

The Greens consider that ‘it is not fair on submitters that the bill could be changed significantly after the select committee has already heard their submissions’. Out of interest, I had a look at the terms of reference for the Māori Language Advisory Group (MLAG). The document states that the MLAG will provide expert and independent advice about the Māori Language (Te Reo Māori) Bill including any changes to policy intent and legislation. Moreover, the group will be supported by Te Puni Kōkiri (TPK) and Te Taura Whiri i te Reo Māori (Māori Language Commission). It also specifies:

“For the avoidance of doubt, it is noted that the Māori Affairs Select Committee will undertake its inquiry into the Māori Language (Te Reo Māori) Bill, and provide its report to the House by 30 March 2015. The establishment and operations of the Māori Language Advisory Group is not related to, and will not affect, the operations of the Māori Affairs Select Committee. The Māori Language Advisory Group will be able to review and comment on the findings and recommendations of the Māori Affairs Select Committee with regard to the Māori Language (Te Reo Māori) Bill”

It seems that the two groups have distinct roles. The MLAG to consider the technical aspects of language revitalisation and implementation of the strategy. The MASC to provide a more holistic role in hearing and addressing the concerns of submitters through a final report with recommendations. While that might seem pretty straightforward, it would be good to get some clarification around the process so that the public can see whether it is or isn’t ‘wasting the committee’s time’. However, I am not entirely convinced that the criticism is about public interest in the process. Especially,  given the Greens and Labour have been highly critical of the Bill since its inception and would probably prefer it to not progress any further.

However,  as an opposition MP, Turei does have an obligation to outlay her concerns as a representative on the MASC. But her comments about Korako  I found a little troubling, perhaps I’m overreacting.

(3) Questioning the selection, competency and experience (and impliedly mana) of the person elected by majority vote to position of Chair seemed to me to go beyond the remit of an opposition MP and enter more personal territory. Because it is the Māori Affairs select committee, I’d have expected a measure of manaakitanga be shown, especially once the process of election were complete.

 Turei commented on Māori TV [see audio] that:

 “National put up a first termer as the Chair of this committee, it is an important committee, it should be chaired with someone who has much more experience than that”

I refer to the audio because it gives other cues in the form of tone and body language that cannot be translated in its written form and the text in the article and the interview differ slightly.

Te Rōpū Pounamu (The Greens Māori caucus) also emphasised this sentiment in a tweet:

I wondered on what grounds a first term MP might lack experience to Chair the Committee. Obviously a first time MP has no Parliamentary experience, but all MP’s enter the House with their unique skills and life experiences. I also considered if the same criticism would have been raised if it were a Labour first term MP who was nominated and elected to Chair the Committee.

Anyhow,  I took a peek at Korako’s public profile. Having sat on a number of Boards and having been involved in iwi organisations as well as running his own business, I do not see how he wouldn’t have the necessary skills to do the job. The suggestion that he wasn’t up to scratch was probably deeply insulting to him. It also came across as rather elitist highlighting perhaps a sense of hierarchy within the Greens that would appear to run counter to their narrative of equal opportunity.

What Turei doesn’t mention is the process by which the Chairperson is selected.  Its an important part of the context. In short, at the first Committee meeting nominations are called for by any member of the committee, and the nomination must then be seconded. Once nominations are ready, then the Chairperson is elected by majority vote.

So it is misleading to say National put a first termer as Chair, when the reality is, that Korako’s nomination must have been seconded, and then he was elected to that position by the majority of the committee.  My understanding is that there was a deadlock during the election process and if it weren’t broken then the meeting would have been dismissed and the committee unable to carry out its work. Apparently, Marama Fox relinquished her nomination for Deputy Chair to Nanaia Mahuta (Labour) to break the deadlock and to enable the Committee to carry on.

It is great that the Greens are stressing the importance of the Māori Affairs Select Committee and that they are (and have always been) committed to Te Tiriti. I just think the little snipe at Korako stooped to a level below which I’d expect the Greens to go. I may not agree with his party politics, but his perceived lack of experience by the Greens, isn’t something I’d expect to see his Committee colleagues dragging out in public after he were elected.

About Indigenous Peoples

Following last nights debate on ‘whether the New Plymouth District Council should have designated Māori Wards’, I thought it might be worthwhile posting my thoughts on the concept of Indigenous Peoples. Why? Because the persistent analogies to minority groups within the dominant group inadequately address the issue of what it means to be indigenous. This to be fair happened on both sides of the debate. The side opposed to Māori Wards attempted to ignore the colonial history and the downstream effects of colonisation on identity, representation and structural power differences. On the side in favour, attempts to get those opposed to reflecting on how different NZ society might have looked absent the women’s suffrage movement. I appreciate the angle Metiria Turei was taking, and I wholly endorse that sentiment. However, I think we need to be careful about lumping the rights of Indigenous Peoples in with marginalised sections of the dominant group. This is explained further below,

I am mindful that the concept of ‘indigeneity’ is itself controversial – including among those self-identifying as Indigenous Peoples. However, here is an [abridged] excerpt from a paper I wrote regarding Indigenous Peoples and International Trade Law, that sets out some of that literature, which I think is relevant to last nights debate.

 [From my paper: Enabling Indigenous Peoples Economies Through the WTO].

Indigenous Peoples represent around six per cent of the global population.[1] However, international recognition of Indigenous Peoples rights is a relatively new phenomenon.  Prior to World War II, attempts by indigenous representatives, such as Tahupotiki Wiremu Ratana (Māori, Aotearoa New Zealand), to have their voices heard at the (then) League of Nations were denied.[2] Frustrated by the continued decimation of their human rights, Indigenous Peoples have embarked on what might be termed a renaissance. Although the mood or resistance has been building over the past three decades, evidenced by the creation of indigenous centric institutions within the United Nations system, the emergence and persistence of grassroots groups suggests a new progeny is born to carry the mantle of resistance through the next phase of globalisation.[3]

Etymologically, the word indigenous derives from the Latin indigenia meaning ‘sprung from the land’, ‘a native’ or literally ‘in-born’ or ‘born in (a place)’.[4] Others have interpreted its Latin roots as meaning ‘belonging naturally to the soil’.[5]The etymology provides a basis to formulate a legal definition but is weak on its own since it evades broader considerations necessary to make any definition meaningful, at least to those the definition is attempting to describe. It is also too wide, encompassing the rights of any person born in a particular place, thereby ignoring issues pertinent to the unique experiences of Indigenous Peoples and failing to capture the political history that renders the need for special recognition of indigenous rights. However, consensus on a formal definition in the literature has not been forthcoming, and attempts to define or to develop practical criteria for the legal recognition of Indigenous Peoples at international law, were either criticised for their assimilatory underpinnings,[6] or have lacked broad support to give any definition or characterisation any firm legal status.[7] While some descriptions incorporate distinct cultural and social factors, others attach significance to histories, language and political subjugation to the dominant culture.[8] One of the most widely cited descriptions of Indigenous Peoples, is the working definition, proposed by the Special Rapporteur on The Issue of Discrimination against Indigenous Peoples, Jose Martinez Cobo in what is commonly referred to as the Martinez Cobo Study.[9] The Special Rapporteur emphasised that Indigenous Peoples have ‘historical continuity with pre-invasion and pre-colonial societies that developed on their territories’, and are ‘distinct from other sectors of the societies now prevailing in those territories’.[10] He also suggested they ‘are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems’.[11]

Prior to the Martinez Cobo Study, the International Labour Organisation (ILO) had attempted to construct a definition in their Convention on Indigenous and Tribal Populations (No. 107) although it was criticised and later replaced by the Convention on Indigenous and Tribal Peoples in Independent Countries (‘the Convention No. 169’)[12] due to the integrationist approach the earlier text advocated.[13] However, only 20 countries have ratified the new convention, which arguably minimises the legal significance it might have had at international law.[14]

Article 1 of the Convention No.169 distinguished Tribal peoples from Indigenous Peoples but affirmed that self-identification as Tribal or Indigenous was regarded as the fundamental criterion for determining the groups to whom the provisions of the Convention would apply’.[15] The Convention No. 169 definition is useful because recognises the adversity afflicting Indigenous Peoples, by incorporating the ideas of self-determination and the existence of a community will that existed prior to colonisation and still prevails – even if in a softer form than traditionally,  following a history of colonisation and its subsequent effects.[16] Additionally, it emphasises self-identification, consultation and participation, and anti-discrimination as core principles, [17] which supports the systems Indigenous Peoples have in defining their own ways of identifying as belonging to their particular indigenous group.[18]Although few countries adopted the Convention No. 169, no new definitions have emerged in international law to supplant it and while it only has legal effect for those countries that ratified the convention, it at least provides a supplementary reference to assist in international jurisprudence.

Arguably, the Convention is also broad enough to capture the many Indigenous Peoples of the world, but narrow enough to exclude groups or people attempting to disingenuously attain indigenous status. This co-opting of indigeneity is worth noting since it is used in various situations to negate the special status afforded to Indigenous Peoples within national legal frameworks. Given the language of co-option, that infiltrates the political landscape both locally and globally, [19] it is unsurprising that Indigenous Peoples consider definitional issues a matter of their own concern rather than that of States or international bodies.[20] This is a point to bear in mind when attempting to define, classify, or characterise indigenous rights. In reference to Māori Academic Ani Mikaere, attempts should be mindful of avoiding recreating the colonised in the image of the coloniser’ (emphasis added).[21]

Unfortunately, some pro-indigenous but non-indigenous individuals, groups or organisations who advocate on behalf of Indigenous Peoples can stifle Indigenous Peoples voices. This amplification of non-indigenous voices on indigenous issues prompted Chief Tashka Yawanawa of the Yawanawa tribe in Brazil to lament: [22]

We are tired of anthropologists, environmentalists, church-related organizations, and other specialists speaking for us and using us for their self-interest. Please respect our self-determination to make our own decisions.

As illustrated above, determining what constitutes ‘indigenous’ is both complex and contentious. However, Lindsay Short argues, it is ‘increasingly important as the international community moves towards greater legal recognition of indigenous legal rights’. [23] Short warns though of the unintended consequences of framing any legal definition too precisely, such that it potentially excludes certain communities the particular law was intended to assist.[24] A remedy to guard against the risk of accidental exclusion might be found in the work of Siegfried Weissner who suggests disaggregating human collectivities into ‘organic’ and ‘non-organic’ groups to appreciate the spaces Indigenous Peoples occupy.[25] He does this to emphasise that Indigenous Peoples are distinct from marginalised groups that ‘do not have the same interest in sharing all aspects of life’ and who are ‘primarily concerned about not being discriminated against by the ruling elites’ (emphasis added), as alluded to above, in part, in discussing the problems of pro-indigenous non-indigenous voices speaking on behalf of Indigenous Peoples.[26] Weissner suggests that organic groups make a conscious choice to live in a community together such as a ‘nation’ or as a ‘people’ (emphasis added).[27] He proposes that Indigenous Peoples are, therefore, inherently organic because they are ‘collectivities that are characterized by the desire and practice of sharing virtually all aspects of life together’.[28] Moreover, Weissner insists that classifying Indigenous Peoples as organic groups ‘facilitates inclusion in the legal regime of autonomy of not only indigenous communities with distinct territories, but also those [I]ndigenous [P]eoples who have lost most of their land base, thus constituting largely personal associations’.[29] Mikaere also appears to draw on this concept of ‘organic’ groups. She writes that the cumulative effect of knowledge building connects people to ‘their environment, and to one another within a framework of shared beliefs and understandings about the way in which the universe is ordered’.[30]

 

In the debate, the opposition referred consistently to the UDHR but mostly ignored UNDRIP. Winston Peters decried the use of racial attributes as justifications for representation.  Willie Jackson, in my view, made the strongest point in emphasising that the Māori Wards are not just about having people who have Māori ancestry, but are about having representatives that advance kaupapa Māori. His words resonate with the idea of conceiving of Māori (and all other Indigenous Peoples) as an organic group, not a marginalised sector of a dominant whole.

Recognising the rights of Indigenous Peoples as distinct from rights of marginalised groups is not about advocating a superior status. It is about recognising that Indigenous Peoples have rights as ‘a Peoples’. That dominant groups already exercise rights as ‘peoples’ in formulating, implementing and enforcing the rules that legitimised the formation of their States, constitutions, institutions and both national and international legal frameworks. These rights as a ‘Peoples’ are distinct from ‘individual human rights’.

 

Footnotes: 

[1]     United Nations Department of Economic and Social Affairs State of the World’s Indigenous Peoples ST/ESA/328 (2009) at 7-8. [SOWIP]

[2]     SOWIP, at 2.

[3]    Megan Davis “International Trade, the World Trade Organisation and the Human Rights of Indigenous Peoples” (2006) 8 Balayi: Culture. Law and Colonialism 1, at 1.

[4]     Douglas Harper “Indigenous” Etymology Online (accessed 18 October 2014) <www.etymonline.com/index.php?term=indigenous>

[5]    Jagannath Dash and Rabindra Nath Pati “The Indigenous and Tribal People To-Day: Issues in Conceptualisation” in Tribal and Indigenous People of India: Problems and Prospects (APH Publishing, New Delhi, 2002) at 3.

[6]     International Labour Organisation Convention on Indigenous and Tribal Populations 1957 (No. 107), [ILO Convention No. 107].

[7]   International Labour Organisation Convention on Indigenous and Tribal Peoples 1989 (No. 169) (entered  into force on 05 Sep 1991) [ILO Convention No. 169].

[8]     Lindsay Short “Tradition versus Power: When Indigenous Customs and State Laws Conflict” (2014) 15 (1) Chi J Intl L 376 at 380.

[9]     SOWIP, at 2.

[10]    United Nations Study of the Problem of Discrimination against Indigenous Populations E/CN.4/Sub.2/1986/7 Add. 4 (prepared by the Special Rapporteur, Jose Martinez Cobo) (1986/7), paras [379-382], [Martinez Cobo Study], as cited in SOWIP, at 15-16.

[11]    Martinez Cobo Study, at 15-16.

[12]    ILO Convention No. 169.

[13]    ILO Convention No. 107.

[14]    ILO Convention No. 169.

[15]    ILO Convention No. 169,

[16]    ILO Convention No. 169, art 1.

[17]    For example, see ILO Convention No. 169, arts 3 and 4 (on discrimination), and arts 6 and 7 (on consultation and participation).

[18]    For a general discussion see Natalie Coates “Who are the Indigenous Peoples of Canada and New Zealand?” (2008) 12 (1) Journal of South Pacific Law 49-55.

[19]   See for example Hon Trevor Mallard’s comments on attempting to proclaim indigenous status in parliament in 2004 amid the Foreshore and Seabed tension in New Zealand: (3 August 2004) 619 NZPD 14522

[20]   Short, at 380-381.

[21]   Ani Mikaere Colonising Myths and Māori Realities: He Rukuruku Whakaaro  (Huia Publishers, Aotearoa New Zealand, 2011), at 206

[22]    Tashka Yawanawa “Indigenous Leader to NGOs: No One Speaks For Us – Or Thinks For Us” Ecosystem Marketplace: A Forest Trends Initiative (online, Brazil, 19 October 2012) <http://www.ecosystemmarketplace.com/pages/dynamic/article.page.php?page_id=9381&section=home&eod=1&gt; , as cited in First Peoples Worldwide “FPIC without FPIC” (online, 9 August 2013) <http://firstpeoples.org/wp/fpic-without-fpic/&gt;.

[23]   Short, at 380.

[24]    Short, at 380.

[25]    Siegfried Wiessner “The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges” (2011) 22(1) EJIL 121 at 128.

[26]    At 128.

[27]    Ibid.

[28]    Ibid.

[29]    Ibid.

[30]    Mikaere, at 317-322.