Friday, September 09, 2005

Claudia Orange on the future of the Treaty

I managed to make time yesterday to make it to Dr Claudia Orange's talk on "The Treaty in the 21st century: Where to now?" For those who don't know, Dr Orange is currently the director of history and Pacific cultures at Te Papa, a former editor of the Dictionary of New Zealand Biography, and author of The Treaty of Waitangi and a more recent, illustrated version. Her talk was part of an ongoing series of public lectures hosted by Massey Albany.

The first part of the talk was a quick overview of the past - why the Treaty had been signed, how it had been broken almost immediately by the settler government, and how despite this Maori had continued to regard it as the guarantor of their rights and adherence to it as the measuring stick for justice. It's important to remember that demands for justice under the Treaty didn't start yesterday; right from the beginning, Maori have sought unsuccessfully to enforce their rights, through court cases, political action, appeals to the monarch, and hundreds of petitions to Parliament. It is only since the 1970's that we have really started paying attention - and only since the 90's that we have started doing something about it.

Dr Orange devoted some time to the issue of "Treaty clauses" in legislation, pointing out that they are a recognition by successive governments that the terms of the Treaty had not been upheld in the past, and a commitment to ensure that those same mistakes are not repeated in the future. Directing decisionmakers to consult with iwi (as in the RMA) or make their decisions in accordance with the Treaty's principles (as defined by the courts and the government) helps prevent the sort of stupidity which led to the Motunui claim; allowing decisions to be challenged in court under such clauses "gives the Treaty some teeth" and provides a useful curb on government behaviour. If you believe that the Treaty is irrelevant and that the government has no obligation even to protect Maori property rights (however broadly or narrowly you define them), then this is obviously anathema - but if you believe that the crown should keep its word, then they are an essential means of ensuring that it does so. That's not to say they're perfect - there seems to be a growing consensus that greater specificity is needed, and this is reflected in more recent legislation - but the general idea of embodying our Treaty obligations in legislation is a good one.

Dr Orange also pointed out that of the 39 pieces of legislation containing Treaty clauses which National and NZ First want to gut, around half relate to concluded settlements. Amending this legislation so as to remove these clauses might open these settlements to renegotiation, and undo much of the good work of the 90's in this area.

Speaking on the settlements process, Dr Orange pointed out that we are still in the very early stages. According to the Office of Treaty Settlements' quarterly report, the first Treaty settlement was completed in 1992, so we've been doing this for only a little over ten years. That's a very short time in which to investigate and resolve 150 years on injustice. She also pointed out that the process can't be rushed - the historical investigation is a vital part of the process, providing a basis for negotiations as well as for the crown's apology. This takes time, and requires skilled staff - who are simply unavailable. Good historians don't grow on trees, and the shortage of them is a real problem (Stephen Paewai of Tamaki-Nui-a-Rua expressed similar views at the Treaty symposium I attended earlier in the year). Parliament is another bottleneck, with settlements taking between four and seven years to move from a Tribunal hearing to legislation due to Parliament's schedule and the relatively low priority accorded to settlement bills. Unlike the historians, this problem is entirely in the hands of politicians, and if they are looking to speed up the process, this is where they can make a real difference. But it will still take time; Dr Orange estimated that realistically it will take until 2020 to settle all historical claims, and that the claims by some parties to knock it all off by 2008 or 2010 were simply a fantasy.

Finally, there was some discussion on current political debates. On what real basis can we suggest that there are "two standards of citizenship" as claimed by the National party? We definitely had that long ago, and to the detriment of Maori. But claims that Maori are in some way advantaged or enjoy special privileges over other New Zealanders are simply false. What special provisions exist exist because Maori are still frequently in "catch-up mode" - in education, in health, in employment, and other areas. Where one group falls significantly behind in educational attainment, is grossly overrepresented in unemployment statistics, and has a life expectancy substantially below the average, even after controlling for socio-economic status, smoking, etc, then that is need, and if you believe that all New Zealanders should enjoy substantially the same basic life chances regardless of race, then additional funding to close that gap is justified. Likewise, where central and local government have a long history of systematically ignoring the interests of a particular group, then a legislative reminder that those interests must be taken into account along with everyone else's is justified - as is legislative recognition of property rights (in lands, forests, fisheries and other taonga) that pre-date the arrival of the crown in New Zealand. These aren't "special privileges" - it is ensuring the same substantive civil, political, economic and social rights as are enjoyed by every other New Zealander. If we are to be ashamed of anything, it is that such action is necessary - not that it is being taken.

There wasn't much time for questions, and the only one asked focused predictably on National's playing of the race card in the election campaign. Dr Orange thought that this was irresponsible and was extremely disappointed. Consigning the Treaty to the dustbin, as National and NZFirst want to do, wouldn't simply be unjust - it would also be unwise. We had to start paying attention to historical injustices in the 70's because Maori were powerful enough and assertive enough to give government no other option. Since then, they've only grown in power. Tearing up the Treaty will not keep Maori down, no matter how much Brash's culturally insecure backers want it to - it will simply lead to an angrier, nastier relationship. The dead white males backing this action don't seem to worry about this - after all, they won't have to live with the consequences - but the rest of us definitely should.


"Where one group falls significantly behind in educational attainment, is grossly overrepresented in unemployment statistics, and has a life expectancy substantially below the average, even after controlling for socio-economic status, smoking, etc, then that is need"

None of the links you offered appear to control for those factors. But supposing that there are other studies that do, and that the inequalities still remain, what should we conclude from this? You cannot plausibly hold that one's biological race can intrinsically make one more needy. Having brown skin doesn't make you stupider or less hard-working. So what's the real cause of the problem? Is it cultural (e.g. if Maori values tended to be less conducive to success in modern society, as compared to the mythical 'Protestant work ethic', or whatever)? Is it ongoing oppressive racism that's holding them back? Neither of these strike me as especially plausible, though of course I can't be sure.

Anyway, if you don't think Maori disadvantage can be explained by the same socio-economic factors that affect ALL poor individuals, then I'd be curious to hear what you think it is that's holding them back. What's the real cause of their "need"?

Posted by Richard Y Chappell : 9/09/2005 07:01:00 PM

The controlling for SES etc referred to the life-expectancy study, which found a substantial difference between Pakeha and Maori of equivalent income. They haven't pinned down the causes yet, and one of the reasons for additional funding (which Don Brash dismisses as "race-based") is to find out what they are, and what (if anything) can be done about them. In the meantime, we're just left with a shocking difference which turns race into a proxy for medical need, at least when you look at people in the aggregate (as you have to do when allocating funding).

As for the rest, the general welfarist argument applies: we want everyone to have the same basic life chances, the same opportunities to pursue their life goals and succeed or fail on their own merits, regardless of the circumstances of wealth, birth, or race. And if one group is falling behind significantly, then at the least it is worth investigating, and crafting or reforming policy so they get the help they need. If this requires "race-based" funding, then so be it - because what matters ultimately is not that they are Maori, but that they are in need.

Posted by Idiot/Savant : 9/10/2005 01:13:00 AM

again you miss - deliberately or otherwise the point about attacking race based funding. I have absolutely no problem with health research that focuses on ethnic causes for different outcomes, be it diet (give you that for free), genetic makeup (and that) or white oppression (what you would like to blame it on)

what I have a real problem with is the idea that 2 18 year olds in a mangere street who grew up together and went to the same schools have different welfare or educational entitlements because one of them has a brown or white skin. rationalise that to me

Posted by sagenz : 9/10/2005 03:54:00 AM

> They haven't pinned down the causes yet

Unfortunatly for Maori is is HIGHLY likely that thy have a low life expectancy than European people (who have a lower life expectancy than asians all things being equal)

> and one of the reasons for additional funding (which Don Brash dismisses as "race-based") is to find out what they are, and what (if anything) can be done about them.

Such research would stil be race based UNLESS it just emerged naturaly out of the desire to treat a disease - in which case there is no need to treat it as "race based" one could just treat the disease.

1) As soon as you focus on race you create situations where a poor mistreated young white man must die in order to save a rich and privilidged and old black man. It is VERY unlikely that race is the best proxy. worse yet the main reasons behind it are some of the most difficult to resolve.
2) If you were to follow the communist strategy where one helps only the most disadvantaged in any situation you will find the most disadvantaged are a "money sink" in that you can only help a handful of people before you run out of money. achieving a tiny amount for a small group that is particularly disadvantaged and nothing for everyone else. A superior strategy is to work where the best gains can be achieved.
ie it is stupid so therefore so too is trying to make race X live 1 year longer at the expense of ten years for some other arbitrary race.

Posted by Anonymous : 9/10/2005 06:08:00 PM

The biggest part of so called race based funding in NZ is in the health sector. It's there becuase health funding is determined not on how many operations really need done, but on a statistical prediction of how many should need done.

If one doesn't give more funding to areas with higher proportions of Maori and Pacific Island peoples, then everyone in those areas misses out, and given the more serious nature of health issues for Maori and Pacific Island peoples on average, it's not them that miss out, it's everyone else.

If you're going to fund health this way, you have to take into account every known factor that produces differing health needs from the per-capita base rate, and ethnicity is one of them.

No individual Maori receives one penny more in benefits, nor gets even one step higher on the waiting lists. This funding model does not favour Maori, even though it requires you try to fairly predict how many people will need care.

Removing the ethnicity measure from the equasion as National claims to be aiming for would screw the entire thing, most especially for those who live amoungst high proportions of Maori and Pacific Islanders.
Not to say that the system shouldn't be overhauled, but you can't just rip out the race part and expect it to work.

Posted by Anonymous : 9/10/2005 11:59:00 PM

While there's much that's admirable in what Claudia Orange (as reported here) says, there's also much that strikes me as disingenuous.

The core problem of "two standards of citizenship" is bequeathed to us directly by the wretched Appeals Court metaphor of "partnership". In effect, the Appeals court began a specious divination of a non-Maori nation and a Maori nation within NZ, i.e., who can then be in partnership. This was completely novel and fanciful since the only legal identity/status that had been real since 1840 was the kawanatangan legal identity/status...( All Maori grievance could have been adequately handled by a Treaty Process that acknowledged how they'd repeatedly been denied full kawanatangan status, and how the 2nd Clause's projection of indigneous property (and more general self-respect) rights into the one Kawanatangan legal reality had also been extensively violated.) So what the Appeals Court metaphor *really* does - thereby becoming actively toxic rather than merely fanciful - is announce not a quasi-federal relation of two nations (neither of which actually exists except insofar as the Appeals Courts own words have spoken them into existence) but a rearticulation of the one nation that does exist into two groups: while we are all kawanatangans, some of us are also rangitirans - natural born senators. The Rangitirans are the only self-standing citizens and the merely kawanatangan have a second-class status, where their citizenship is dependent somehow on the consent of the Rangitirans or on the terms of a Treaty signed with Rangitirans or some such thing.

One hardly goes a day or so listening to media in NZ without some jerk building on the basic idea of partnership to insist that Maori are the real citizens/owners and everyone else is a conditional citizen/renter (and depending on how the partners are alleged to be indivduated perhaps non-pakeha, non-maori are third-class, doubly conditional - guests of guest, etc.) That's depressing to say the least.

Concrete example: the Maori party is saying that it wants a "treaty-based relationship" with any governing party (maybe with all parties) *not* any normal political relation like coalition/confidence&supply/opposition. (although they haven't been entirely consistent about this). The Maori party is very directly saying - if you have ears to hear it - that it's going to part of the legislature but also simultaneously outside it as a rangitiratanga (second clause of Treaty) partner to the whole legislative/kawanatanga (first clause) enterprise. That's a toxic position to have and may yet cause a consitutional crisis after this leccetion. (And of course it's ridiculous for Pita Sharples to deny that Maori claim no extra rights when his party is claiming/asserting aggregated primary citizenship/natural born senator standing over everyone else.)

Dr Orange is a useful and careful scholar in many respects, but she ducks the main, unbearable constitutional issue that her own sort of view raises (and that is widely theorized about in more or less gloating ways by Walker, Durie, Considine, and so on). Orange's dismissal (as paranoid or reactionary or fuddy-duddy) of anyone who is worried about the stuff she chooses to ignore is shallow, looking-on-the-bright-side-ism at best. Contrary to what Dr Orange suggests, there's plenty to be concerned about and that will have to be sorted out, whether by Brash's preferred means or otherwise. In any case "Partnership" (rather like "fraternite") is (i) an in principle human-rights violating disaster as a sort of legally operative concept (given that no quasi-federal structure is possible in NZ), (ii) a gutting and dispiriting feature of public discourse, and (iii) a practical disaster waiting to happen. It would be nice if everything in NZ were as legally benign as Orange suggests, but it isn't. It would be nice if crucial public scholars in NZ were committed to telling the truth about distasteful and imminently rejectible and improvable features of the post-1987 Treatyology consensus rather than to defending that consensus (and mocking/impugning the motives of those who see real problems and want to do something about them), but mostly they are not.

Posted by Anonymous : 9/12/2005 01:07:00 PM