Maori nationalism, viewed from a legal angle

Jurriaan Bendien bendien at
Sat Jul 19 12:24:25 MDT 2003


DISCLAIMER: This article has been scanned from a printed source. It has been
proof-read but may still contain errors or inconsistencies. Please refer to
a printed version for complete accuracy when quoting from this document.




Between 1975 and 1990 the Treaty of Waitangi 1840, once regarded as a
"simple nullity", came to be "constitutionalised",1 acquiring the status of
the basic founding document of the nation. A "constitutional revolution"
occurrcd, a "paradigm shift" within the dominant commonsense of
practitioners in the juridical-political system which shattered the
tradition-bound conception of Maori rights and Pakeha duties.2 Similar
change in the status or indigenous peoples was evident in Canada during
1982-1990 and is now evident in Australia.3

Altered official discourses have yet to change material conditions and halt
the impending ethnocide of indigenous First Nation peoples.4 Social
indicator data on education, employment, housing and the justice system
illustrate the structural realities of Maori disadvantage. In New Zealand,
where 9.5% of the population self-identify as Maori and 3.6% as Pacific

* Maori are 3.5 - 4.4 times less likely than Pakeha to attend a univcrsity.5

* One fifth of the Maori working age population lost their jobs in the two
years from March 1987 to March 1989 - a loss four times higher than that for

* Only 44% of Maori owned their own homes inl986, compared with a national
figure of 75%.7 Maori retain only 5% of freehold land in New Zealand. Moana
Jackson estimates that since 1840 Maori dispossession has been "legalised"
by over 100 pieces of legislation which breach the Treaty.8

* Maori offenders are over-represented in the criminal courts and jails. Of
non-traffic adult offenders sentenced to imprisonment in 1991, Maori
accounted for 48%, Europeans 43%, Pacific Islanders 7%.9 Among young people
convicted under the Children, Young Persons and Their Families Act 1989,
Maori account for 53.4%, Europeans 32.2% and Islanders 6.9%, despite the
Act's whanau-oriented family group conference and diversion based model.10

While Labour's social democratic constitutional agenda ostensibly tried to
advantage Maori, it was Maori who bore the brunt of Labour's antidemoc~atic
monetarism, the hegemonic "revolution" of 1984-1990 which abruptly jolted
New Zealand from dependent agricultural Fordism to Post-Fordism.11


Before being ousted from office for a decade Labour set up the Waitangi
Tribunal, under the Treaty of Waitangi Act 1975, to promulgate principles
for interpreting the Treaty and for identifying Crown activities
inconsistent with those principles. Despite its compromised beginnings, the
constitutional revolution began with the creation of the Tribunal.12 In 1985
the Fourth Labour Government (1984-90) attempted unsuccessfully to
incolporate the Treaty into an entrenched Bill of Rights.13 More successful
was the gradual 1984-90 promulgation of the principles of the Treaty
emerging from the reports of the Waitangi Tribunal.14 These principles have
been reaffirmed and complemented in decisions of appellate courts,15
reinforced by directives issued by the executive,16 and validated by
incorporating recognition of tikanga Maori and the principles of the Treaty
into legislation.17 For the first time since 1840, a set of principles by
which disputes about Pakeha duties and Maori rights were to be honourably
settled became part of official discourse.


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