What Do We Need – Policeman, Judge or Jury



Sandra Lee, Alliance Member of Parliament & Leader, Mana Motuhake





Thank you very much for inviting the Alliance here today to give our response to this important question. Moana Jackson over there and I were asked a similar question on constitutional reform in the Beehive in an interview by Ian Fraser on Monday night. We only had two minutes then so I suppose five minutes is better than two, although on important matters such as these we need many years and this is an evolutionary debate that will occur not just in foras such as this. The question is where indigenous governance fails to be accountable who should intervene? My response is that in the last 159 years we actually haven’t had indigenous government in the true form. So, while we could litigate here today the relationship of hapu to iwi, urban to iwi authority the merits or otherwise of trust boards and so on, I don’t think that is the primary question, the primary question surely must be how do we get indigenous governance in the first place?  The response is invariably we need constitutional reform, and we do. Constitutional reform and constitutional re adjustment in this country is the only thing that will ensure that the compact in the contract that is the Treaty of Waitangi is actually finally upheld and the enshrinement and commitment to our tino rangitiratanga is part of that.


In relation to that as a Maori member of parliament I want to raise some issues and perceptions in relation to the Treaty of Waitangi itself. There is in 1999 at least in the house of representative but I think also beyond it, a perception that the Treaty of Waitangi itself is a finite document and that the obligation of politicians and political leaders in this land at this time is to ensure that Treaty claims and settlements are resolved. Hence, the philosophy behind the fiscal envelope. From there on out, pretty much the Treaty itself is an irrelevant document. This overlooks the fact that it is a set of agreements as to how we relate with the other treaty partner in a bi cultural relationship. Legislation such as a private members bill prepared by members of the ACT party and Mr Quigley and even the constitutional reform bill which was prescribed by Mike Moore prior to leaving for the World Trade Organisation should be of concern to us, because it shows that across the political spectrum there is a perception that the treaty is indeed a finite document simply being kept alive as long as claims are waiting to be resolved.


We need only look at places like East Timor and the collective political rejection of the treatment of the people there and this government’s emphatic support for their rights as a people to have democratic sovereignty over the ways that they do things in their land. But it rather begs a question. I would have thought that our governments, so willing to embrace a principle offshore have steadfastly over the last 159 years so resistant to the rights of us here in this country, the indigenous people.


We have been treated and deceived. The treaty’s explicit guarantees have never been upheld. We need to make sure that Maori do not get sidetracked down byways and creeks in debates and discussion with one another that are so prescriptive in terms of how we relate to one another that we miss a fundamental debate. This is the debate about how we relate to the other treaty partner, and how they uphold the guarantees that are contained within the Treaty of Waitangi. So when we talk about words that are almost becoming cliché nowadays such as constitutional reform, I promise you you won’t find a Maori politician this election season that isn’t committed to constitutional reform. Accountability. That’s an important word but another cliché that begs the question what do these things actually mean?  The juries out on that of course. Our people have many views, and that’s okay, but ultimately we are going to have to come with some urgency to some conclusion, in my view


First of all in terms of constitutional change we need structural change, I have been reading back through the archives of the old Department of Maori Affairs and the old Department of Maori and Island Affairs and it is quite amusing to look at a lot of the philosophies that sat behind that department. Driven by the Crown decade after decade. One of my daughters who is at university, made the remark that it is rather ironic that you can read in the archives the assimilation policy and the expression of difficulty in getting some of the Maoris in some rural areas to give up their language. In 1962 the Hunn Report Maori language was the Maori language was an impediment to their advancement and education. Now Maori students in 1999 have to pay the Crown for the privilege of being able to re-learn their own language. It does seem to be ironic. So we need structural change and in our view that structural change will have to involve genuine power sharing and it has to occur in a range of different ways.


From where I sit in parliament, there are some quick things that we could do with a political will. Rather than having a ministry called the Ministry of Maori Development charged with a monitoring function that largely by statute requires them to monitor what’s not happening why cant we have restructuring in a way that sees a Ministry of Maori Development charged with the auditors of that which is rightly ours, not in terms of treaty settlements going to trust boards, but actual vote coming from the Crown purportedly to Ministries for the benefit of Maori but over whelmingly failing to reach those people it is meant to be servicing.  Why can’t we have Maori as full participants in the policy formulation that affects the way that we are governed and our lives? At the moment the vast majority of our people are forced into a reactive mode (and can I add actually nowadays particularly since about 1984 in the age of the free market large numbers of pakehas as well) forced into a position of being solely reactive to the policies that are set down by any given government in any given year. In no small part that is a direct result of the internationalisation of capital in the market place where organisations like the OECD and the WTO seem to have more governance over our affairs than our own so called government.


The other parameter we need to look at is the legislative framework. In this country there has never ever been a bi cultural commitment to the development of a legislative framework.  It has been imposed upon Maori rather than developed alongside and with the mandate from our people. I want to give you a few examples. Even where you see legislation being introduced purportedly for the benefit of our people and specifically targeted at our empowerment I am speaking from my own perspective. Take for example the TRONT [Te Runanga o Ngai Tahu] legislation that provided a so called legal personality. What is happening in the 1990s when we see legislation that empowers what is essentially a corporate structure to represent me as an individual Maori from a particular iwi and I quote from the legislation “ for all purposes”. How can any corporate structure represent me and my descendants for all purposes? If the Crown wishes to convince me that is because I belong to a particular iwi I know that in pre European days and indeed prior to the signing of the Treaty, no iwi or hapu would presume to have vested in a small group of individuals the absolute representation of others for all purposes. So the questions is begged, how can that be an advancement? Again if you take the Te Aho Matua Bill which was purportedly to enshrine that very noble philosophy of our people in a Maori education initiative. Why is it, in that legislation passed by parliament months ago, do we have a requirement that the Minister shall appoint the kaitiaki. Why do we need Ministers of the Crown determining who best represents us as a people in this day and age when they pay lip service to empowerment for Maori. The truth of the matter is, and Moana Jackson far more eloquent than me that it is almost impossible for Maori to win under a majority vote system, and nobody knows that better than me. I’ve clocked up 17 years trying and I’m not sure that I’m altogether winning, so we need to demand in the constitutional rearrangements a clear cultural understanding that we do not want to participate on that basis because equal is not necessarily fair and it is equity we seek to pursue.


So a policeman a judge or a jury? Well we need a policeman all right, we need to police the vote because there is an old saying “it don’t mean a thing if it aint got that zing” we have set up as Maori constitutionally. Over many years some noble institutions, Maori Congress is but one example, but the truth of the matter is that they have become paper tigers because the resources they should have had in order to deliver on the governance haven’t flowed from those who govern us. Unless they do pretty well, its not going to seem real to most people, so a policeman to police the vote. Why not TPK? Make them the Maori Treasury. Let us flip the argument and make sure that resources are clawed back and TPK can determine how they were best applied by Maori because we have had 150 years of other people working out how best to deliver for us, and if you read the Closing the Gaps report is has been an overwhelming and spectacular failure.


A judge, well who would be a Maori judge is this country nowadays if you are guilty merely by having an iwi. You will be persecuted to then inth. We do need to be judges and the way that we judge is through ensuring that the legislation that is brought down by the Crown isn’t developed without Maori being full participants in the process, I’m not talking about consultation here I am specifically talking about full participance in the development of the prescription and the philosophy and the intentions that sit behind any given legislation because the legislation from what I’ve seen in six years in parliament is as paternalistic now as it ever was before.


A jury, yes most definitely and who is the best jury of what occurs for Maori and the answer is us, our people. We know all the negative statistics they are quoted often by people like John Banks and Richard Prebble and others in parliament. What are the solutions? We need a genuine commitment to power sharing but as I heard the other day from Moana in a quote “nobody with power actually gives it up willingly”. So the bottom line for Maori people in our view is that these cliches about our absolute obligation post-treaty settlement to move out of grievance mode is a must, is actually a myth. The truth of the matter is (and the people of East Timor have confirmed in the face of all the might of the Indonesian army) that we must go on demanding it is a hallmark of a decent society that one might have the right to demand and we must go on demanding simply because power is never shared or given up without such demands.


In response to a question from the audience, I believe as the Bishop said yesterday, there is authority we Maori always had indigenous governance. The problem is that we have had another form of governance super imposed on it. For all the will in the world it is not working as we know, and yet we should try to go back and find it. We had a talk here this morning about whanaungatanga I found that very powerful that the whole strength of our tribal beings is in that whanau corporate body, it could be a source of power that we know nothing about.





What Do We Need – Policeman, Judge or Jury



Nanaia Mahuta, Labour Member of Parliament



Tena tatou katoa. Tuatahi …………………….



As we have only got five minutes I will get right into it, but when I did read the question I guess there were a number of assumptions which underlined some hesitancy in a way to speak to this particular topic. The question was posed for us to discuss debate and that question was Where Indigenous Governances Fails To Be Accountable Who Should Intervene and How To Protect The Interests of All Parties” – What intervention mechanisms are appropriate- I thought to myself there are a number of assumptions being  made there that I wasn’t comfortable with so I will get it all out on the table first. So you can ask me at question time anything which I might not have covered.


Firstly there is an assumption that we cannot do it for ourselves. I believe that although we are going through a difficult time. The whole argument and debate around governance structures, accountability, transparency is very new in some sense. Georgina has already made reference to the trust boards act and I know within my own area, one of the major contentions or problems that people had about that was that there was no responsibility for our trust board members to report back to the people they only had to report to the Minister. We had a major concern about that and now that we are moving into new types of governance structures to do things for ourselves, there are difficulties in trying to get that up and running. But they are necessary I do believe that iwi development, tribal development, Maori development is the way to go and the issue of governance is quite far reaching.


So quickly this is what am I going to speak about today, there are three major thrust that I want to make. Firstly the question of development, where are we at? Where are we going? Where do we want to be?  Secondly to discuss some of the issues of governance and some of the problems at a national level and also at a local level, and then some of the challenges ahead for us. Thirdly I think the other major question for all of us here (aspiring politicians and current politicians alike) is what will be the interface between the State and Maori tribal organisations in moving down the development path. I think that maybe that is probably the role I’m going to try and get involved with to try and do something at a political level.


So what are the challenges for development. We cannot ignore that we want a multi faceted approach to development Maori as a people whether we are from a tribe in the South Island, a tribe in the North Island a tribe on the west coast or one on the east coast, we are all different and what has led to some of those differences in our approach to development are some of the historical precedents that we have experienced.  Critical reference points define who we are and where we have come from, cannot be overlooked when we are trying to set a path for the way ahead.


Social dynamics include, how we have tried to keep our people together and a sense of social responsibility as a collective. At various points in history that has been difficult, at various points in history that has been an easy thing to achieve.


Some of the cultural precepts which really define who we are and what makes us tick as a person are what makes us Maori, what makes us fiercely Ngati Porou, Tainui Ngaitahu whatever. Then look at political mobilisation, how we, have and how we can harness all of those things to move and drive our people forward. In each rohe it has been different and all of you here are a testimony to that.


Economic development, how have we participated or how have we not been able to participate in doing things for ourselves. Then the greenie in me falls back on some of the ecological principles of development. At some point in looking ahead to be able to say “how can we develop as a people, hold onto our history, our culture the things which define us, and still provide something for the future generations so that they can continue to develop”. I think at the moment we are locked into polarised debates: whether they be between the Crown and Maori tribes, or between pan Maori and tangata whenua or Taura. I think some of that has created a number of interesting dimensions to the whole development debate. But how has that helped us understand the governance debate? We all need to look at how to strengthen governance structures at all levels we are involved in development.


Some people talk about mana motuhake. Some others talk about tino rangatiratanga or self determination and self management or co management. Underpinning all this we’ve all seen a need to do something for ourselves. There is a need to have a wider debate about governance and how we are going to take our people forward. Then there is a need to know and explain what we are we talking about when we debate development and governance, because for some of us it is mana motuhake for others it may be self determination. Who knows?


A Constitutional development has to take place at national level and I make no bones about that. The constitutional debate between the Crown and Maori is not sufficiently sophisticated to tackle some of the challenges that are before us. We are embracing globalisation at a rate which is quite rapid for such a small country as ours. Yet the constitutional debate is still very young, I’m not sure what is going to drive that. Will it be Maori themselves, or will it come from parliament or is there going to be a mass uprising with the whole country saying lets go to a republic or what? But true change in this country if we are going to embrace development aspirations of Maori as a group then the rest of the country have to put the constitutional debate right on the agenda. But all of this is shaping our national identity, who we are as a country, how do we reflect that in the international community. Also Repulicanism gives us a greater sense of autonomy as a nation within our sphere of influence. We are not going to be big players like the United States we are not going to be big economic players like some countries in Asia but how can we assert our influence in the Pacific so that we can influence without dominance and make that a major strategic advantage for this country. We can translate that to Maori, because I believe more and more the irony of APEC. What did not happen or what people did identify there was when there will be an opportunity for indigenous peoples to come together and trade at that level purely on the basis that we are all indigenous peoples. That is a development potential for us.


In discussing the governance structures I can comment from parliament what happens there but sometimes I don’t think that is a very good model to use. So I will make some broad brush stokes and pick up on some of the issues at question time.



Governance structures must ensure a level of representation that accommodates all the diverse views held in our country. At a tribal level to ensure that the diversity of views that are incorporated in your tribal governance structures. Governance structures must be responsive to the realities of society, I think that MMP as a political system has actually ensured that. Transparency and accountability are always an ongoing, argument “how do we improve transparencies and accountabilities in the way we spend money and the way we do things. I guess in time, a good governance structure would outline a clear charter of rights and responsibilities of individuals in our society. Some times I think some of the difficulties about governance or development and the way we are going is that as Maori we do have a rather boom/bust type of approach to development. We live in a feast or a famine. That has been my general comments on economic development. We have this pilot programme mentality. Sometimes it grates. Why do we always have to go from pilot programme to pilot programme to pilot programme? What I’ve seen over the last three years are that the biggest hindrances to Maori development are Maori ourselves. To some extent we keep looking over the fence to see what the other fellow is doing .If he is doing something we don’t like, we shoot him down quickly. I have just come from the auahi kore hui this morning where a good analogy was used. It was like all the crayfish are in the bucket one of them climbs to the top when all other crayfish come to pull it down.  I don’t know whether its an inherent part of our psyche as an indigenous people, or what but it certainly hinders progress for us as a people. We need to get over that


Generally the approach that government, (any government) has taken to Maori development ha been restricting many of the things we want to do are multi faceted and a lot of past governments have said no this is too hard, you want to do too much. They are not ready to go down that track. That is a challenge for us as politicians to try and change that kind of bureaucratic mentality.


The last question for me is what role should the state play in our development aspirations in getting an active interface between Maori and the Crown, between tribal development and the Crown. We can only look so far at what has happened recently.  Maori have been heavily involved in service provision of state services. But we have to ask ourselves, do we want to be merely service providers for the rest of our lives. I think not. We really want to get into economic development planning so we can determine for ourselves the different things we want to do. Remember he who pays the piper calls the tune. That has always been a problem for Maori providers always contesting funding


I think the state can help to develop competencies in iwi organisations and Maori organisations, competencies where we have an active role at an environmental level. Monitoring participation in the management of our environmental resources and our conservation resources. Telecommunications, we can be a major player there. That is a big area we could break into. We can be involved in research and development. We must be some of the most researched people out, yet a lot of that research doesn’t actually provide or lead policy to result in the outcomes that we seek as a people, that’s a problem. And then, how to get a better distribution of resources. Again that is a challenge for all politicians. That is what were there to do. We already know mainstreaming isn’t working, so what’s the alternative? How can we redirect those resources to ensure they are getting into our communities and addressing areas of need that is the challenge. Also how can the state play a role in strengthening tribal infrastructure? Some iwi have opted to legislate their organisational structures, some have chosen to set up charitable trusts. There is an option either way, according to each different iwi or organisation. Its up to you,. But the over- riding question is how the state can help. If your particular governance gets legislative authority at some point, that in itself says we have no role to play in the internal governance of that particular iwi organisation, I think that is something quite innovative in the whole area of indigenous development. Where should the major shift occur?  It goes back to my earlier comment about us having a multifaceted approach to development


If we make the shift (and I use the analogy of being a service provider to a funder), if we can achieve that shift, we could be in a position to create greater synergies between our social, economic, political and ecological objectives as Maori overall, or as individual iwi.
























What Do We Need – Policeman, Judge Or Jury?


Atawhai Tibble, Mauri Pacific



A kaumatua, a ……..



The question we are being asked today is What Do We Need – Policeman, Judge or Jury. My response is “all of the above”. The key issue, as I see it, is accountability to our people, accountability of those who have power over us for the things that they do to our people. May I say as a universal precept that I fully support democracy as government of the people for the people by the people. Mo te iwi na te iwi, ma te iwi ko te tautoko a iwi, te korero, essentially I think that is what we are really talking about today. With regards to any governance structure “what is it really about?” It is essentially a body who has been authorised by a mandate from the people to take care of the people. To date if we think about how various organisations have retained or taken hold of some power to look after the people at least in recent times it has been with this guardianship or trusteeship in mind.


The real issue for all Maori organisations is how do we make them accountable and how are they held to account for the services and resources that they do hold for the benefit of the people. I was in a certain part of our country recently talking with people, who said to me “E tama one of the issues here is that there are some people who don’t know the difference between money and mana. I say this with all sincerity because there is a definite perception among the people that there is a difference and that there are some people who need to understand what our leaders are doing with this. How is this benefiting all the people. I say this with great respect to all people in positions of power, essentially that is what we are here to talk about today, accountability. So when we think about what do we call the Pakeha system the Tauiwi system you have an executive, an elected executive, the judiciary the people who look at the law who have seen the framework within which this governing body is meant to operate and you have the policeman as some kind of enforcement arm. To date I am unaware whether there or not there are in trustees there are mechanisms by which people if they have complaints and they are not happy with the way the particular board or authority is acting if they have a mechanism by which they can complain and have their complaint heard and held and objectively assessed and analysed and some kind of objective judgement made because it would appear to me to be a key question that people are asking. I admit there are large numbers of our people with regards to iwi politics and hapu politics who don’t really know what is going on and there is a responsibility that those people have to keep up to date with what is going on. The key issue really for people who don’t know what’s going on or who have some idea of what’s going on is where do they have a say. If for example they do not agree with a decision that has been made by a particular board or organisation is their only recourse to vote in a new person next time, is that all that they can do because if that is so then all we really have is an organisation that is judged every three years, at the end of the three years, we have no ability like we as Maori in terms of the Crown to go to a tribunal or a court to complain and say this is not right.  In the event under an Article II situation where there is an iwi organisation and it has made a particular decision and there are iwi members of that organisation who have a complaint who do they complain to would they complain to a court a pakeha system and say we are not happy with the decisions made we would like them over turned because in that case we would be turning to a pakeha system or is there an opportunity for us as Maori to develop our own systems and to think ahead and plan ahead.









































What Do We Need – Policeman, Judge Or Jury?


Hon. Georgina Te Heuheu, Minister for Courts



Kia ora tatou te whanau kia ora tatou katoa


I think Pauline [Kingi] must be chairing the wrong panel because if she wants a logical and reasonable discussion she’s got politicians up here. We can always hope.


Thank you very much for the opportunity to say a few words.


When asking the question What do we need – policeman, judge or jury I say that there are some times in the life and times of our people on the ground when they feel they need a gun but that’s not what we are looking at today. What that does however demonstrate is that there are some points in our activities especially back in on the ground both in our tribal and urban settings where the expectations between what the people think ought to be happening and some of our structures and the actual delivery is so wide that really it is not surprising that often times we hear of huge levels of dissatisfaction with the way some of our organisations are governed.


When we say indigenous governance fails to be accountable the reality is that we don’t have any true indigenous models in operation in any substantial way at the moment. If you think about where we actually have assets be they significant assets or even modest assets then the big push there is always to have some legal recognition of the organisation administering them because sometimes issues of liability and risks are seen to be best catered for by a model which is basically Pakeha or statute created. If we are talking indigenous governance as such are we talking about whanau hapu and iwi that would seem to me to be indigenous otherwise we are talking about models of governance that are created by statute and in that regard if they are created by statute then statutes actually set out the accountability processes. So if you take our trust boards for instance then the accountability mechanisms for trust boards as we all know are in the trust boards legislation primarily and a lot of our iwi and hapu, our families chose to set up charitable trusts chose to set up incorporated societies again those models of governance that are Western but which never the less set out accountability mechanisms. Having not been at discussions earlier I hope you will bear with me on the basis that indigenous governance per se as far as I can tell doesn’t exist in any meaningful way but governance which exercise responsibility over what we might term indigenous assets or Maori assets that is everywhere to be found and that governance is backed up by its own legislation. That doesn’t mean to say of course that its any more accountable than any other form of governance because of course what the people are looking for is accountability back to them and those mechanisms set up accountability more especially trust boards back to government and in terms that they are statute created they have reporting requirements and audit requirements and so again you get the arm of government intruding because that’s how it will look to a lot of our people intruding into you business you business operations and your management operations. If we were however looking for something that more resembles or so we think resembled the way traditionally we might have exercised governance we must then be looking at something that gives some sort of legal recognition to whanau hapu and iwi. Its at that point that some of us get worried because we say they have a legal framework, a Maori legal framework of their own and thank you very much we don’t want a government created framework giving recognition to whanua hapu and iwi so I think we have a little bit of a dilemma but I'm sure that some of the papers being presented yesterday especially the dilemmas may be less substantial than maybe I’m making out.


If I can just refer briefly to a paper that was delivered yesterday it seems to me that what Donna Hall was suggesting was that certainly kept the reporting requirements in a pakeha legal sense but in the way the thing was structured in terms of accountability back to people that it was possible to integrate into a model something which actually gave the people the opportunity to participate and the opportunity to be involved in decision making because that’s what seems to be missing now. If I take only our own at home Tumu’s here the trust board in our area is seen to be the organisation that has long been recognised as exercising some sort of governance for our people but in that sense it has been accountable back to the Minister of Mori Affairs because the Minster Tau Henare has been working to try and break down some of that accountability back to government and find ways to actually make some accountability flow to the people but currently as with all trust boards getting some accountability and this is not said in a negative way getting actual accountability back to the people has been the big challenge not only for us but I am sure for others elsewhere.


Our assets by and large are managed and governed by way of pakeha or statute created organisations If that is what we are talking about then there are some accountability measures in there that are set in statute the challenge is to find ways of having an accountability back to the people and still be responsible for those reporting requirements that are the basis of pakeha organisations as well. If we are thinking about governance in terms of our own traditional structures whanau hapu and iwi then I think that’s an exciting thought it’s a challenging one and I think we have to get over the barrier or certainly a blockage in my mind as to whether or not we want law going anywhere near those structure.


Thank you for the opportunity to say something I am sure that whatever comes out of this hui will enable us to advance our responsibilities and our governance beyond where we are today and I wish you all the best for the remainder of the hui.

No reira tena koutou tena tatou katoa







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