Foreword

E nga reo, e nga mana, e nga tai e wha kua huihui mai nei i raro i te karanga o matou nei, Nga Kaitaunaki Rangahau Iwi Tuatahi Puta i te Ao, nau mai haere mai. Te Whakahaere-a-iwi Te Whakamarama-a-iwi– Indigenous Governance and Accountability, koia nei te kaupapa o tenei hui.

He tino kaupapa tenei mo te katoa; mo koutou te iwi Maori, mo matou hoki te iwi Kotimana. Katahi ano kua whakatu he paramata hou mo matou kei reira, kei Edinburgh. Koia nei hoki te kaupapa o te Tiriti. He tino kaupapa tenei mo nga iwi tuatahi o te ao whanui. Na reira aku rangatira, tena koutou tena koutou, ara tena tatou katoa.

In this wananga we focus on governance and accountability. In the process, we try to uncover some portion of the gifts of knowledge truth and justice as they apply to the relationship between those who have called Aotearoa home for hundreds of generations, and those more recent arrivals and settlers.

When this wananga was being planned, a number of questions were posited which would form the basis of the papers presented and to inform the ensuing discussion. These questions and the papers reproduced in this volume, stimulated many further ideas and much debate.

These questions were proposed for consideration through the panui that preceded the wananga.

· Different models for the governance and management of indigenous resources have developed from earlier circumstances till now. How should such models balance financial and environmental management on one hand against accountability to beneficiaries, both

· Within each iwi there are different interests and expectations to consider; whether these are hapu to hapu interests, whether they are interests of men and women, young and old, or urbanites and home people. How can such a range of interests be balanced?

· When accountabilities appear to break down who should intervene? What type of intervention is appropriate, and how can such intervention remain accountable to beneficiaries and other stakeholders?

· What can be learnt from overseas examples of indigenous governance? How can such

· How should Maori governance relate to central and local government. And what legislative and constitutional changes are needed to ensure this?

Analysing political and social changes can be both difficult and controversial, especially when trying to fit them into an historical perspective. For instance in considering changing values and lifestyles, it can be difficult to ascertain whether fundamental changes result from political or social pressures or merely from fashion.

One of the most difficult problems facing iwi is how they should react to social and political pressures for far-reaching changes in iwi organisation practices and attitudes. The problems facing trustees and senior management are particularly acute – or certainly appear so to those directly concerned.

Nevertheless it is worth noting at the outset that iwi have been adjusting, for the most part

successfully, to social and political pressures for many decades and that one of the hallmarks of a successful iwi is its ability to foresee and react successfully to change, in its widest sense. It is often said that hindsight gives us all 20:20 vision, that our vision of past events appears clearer with time. Issues of governance and accountability have to be made without the advantage of hindsight. This volume and Ngai Tatou 2020 allows precisely that analysis from a position of hindsight.

Rapid or radical change is often accompanied by passionate or irrational controversy. The basic issues may be blurred, either accidentally or deliberately, by both advocates and opponents of change. The point needs to be stressed, since it is inevitable if this volume is to discuss immediate and topical problems facing iwi, that the views and value judgements expressed are my own, in spite of my endeavouring to be as objective as possible. I would like to make it quite clear that I do so with a desire to assist iwi in a difficult and often confusing area and to stimulate discussion and debate, even though Pakeha definitions of things Maori, have caused enough problems. Maori do not require and often resent Pakeha who keep telling them who they are or how they should be.

Finally, concrete steps needed to restructure the relationship between Maori and Pakeha are identified. Strategies recommended for Maori to strengthen the governing capacities of their iwi and to establish constructive working relationships within the framework of New Zealand government and society. Some fundamental reforms to the structure of New Zealand government are also identified as being needed to achieve more constructive relationships with Maori.

Confusion over terminology related to governance can have important practical consequences: it may affect not only the definition of the problem but also the policy analysis about how to resolve it.

Governance is a term that in the past decade has progressed from relative obscurity to widespread usage. It denotes a control and power structure where agreed rules are used to make wise decisions on matters that affect the social, cultural and economic health and well-being of the people. Governance came to the top of the Crown’s agenda in 1989 when it published (unilaterally) its five Principles for Crown Action on Treaty Issues, where it was referred to as the principle of self-management.

Definitions of governance abound. Most writers about governance agree it has to do with taking decisions about direction; governance involves the interactions among structures, processes and traditions that determine how power is exercised, how decisions are taken, and how beneficiaries have their say. Fundamentally it is about power relationships and accountability: who has influence, who decides, and how decision-makers are held accountable.

Governance issues are complex. They exist at both hapu and iwi level. Hapu governance enhances hapu importance, and fulfils hapu responsibility to its members. It provides opportunities for hapu to federate and work together for the wider good. Together hapu can establish a federal power structure to undertake services and negotiate a treaty settlement while preserving hapu autonomy and allowing hapu to survive and plan for the future from a solid framework and base.

Governance is essentially about leadership. Leadership has many facets including efficiency, probity, integrity, fairness and responsibility. In order that leadership is accountable it must be transparent, not just to the auditors but to all stakeholders, particularly to beneficiaries. It must be seen to facilitate and engender economic growth and prosperity but not at the expense of hapu and iwi integrity – that is where tikanga is so important

In identifying that good governance hinges upon the competence and integrity of trustees of boards or runanga, it should be observed that standards of integrity and fiduciary responsibility and the wider environment are just as critical. Governance in the context of indigenous peoples raises a number of issues.

· What forms of governance are appropriate in the 21 st century and suitable to the needs of indigenous peoples?

· How can any new order of governance harmonise its activities with existing governance?

· What are appropriate strategies to create capacity for tangata whenua to manage their new governance responsibilities successfully?

· How can tangata whenua communities create a substantive economic base to help support their new governance?

Good governance is critical at all levels and in all sectors. How New Zealand and its tangata whenua manage these and other issues will have an impact on hapu, iwi, state government, the private sector, civil society and citizens generally.

Governance is concerned with the exercise of power. So that traditional freedoms may be enjoyed, commerce may occur, the arts and culture flourish. Governance is important in itself, in that it provides the context for valuing people and taonga, personal liberty and freedom of assembly, within a framework of the rule of law and the role of law within a constitution. Context matters; ‘Good governance’ is thus an end in itself.

In most indigenous nations, political life has always been closely connected with the family, the land and a strong sense of spirituality. In speaking of their governance traditions, many Maori emphasize the integrated nature of the spiritual, familial, economic and political spheres, and their responsibilities as kaitiaki or guardians. This is generally perceived to be their prime accountability.

Most Maori continue to be guided, to some degree, by traditional outlooks in their approach to matters of accountability. In some instances, indigenous communities have made traditional laws, practices and modes of leadership the basis of their contemporary governmental institutions. In other cases, however, traditional systems of governance have fallen into disuse or been replaced by new systems, such as those imposed or at least supported by the various acts of parliament to which iwi authorities are legally accountable.

We consider some important aspects of Maori traditions of accountability. These aspects are

There is no uniform Maori outlook on these topics, many of which were the focus of lively discussion and exchange among those at the wananga. Nevertheless, the very fact that they are the subject of such interest shows their continuing importance in the panoply of indigenous approaches to governance.

Indigenous people, like others, constantly rework their institutions to cope with new circumstances and demands. In doing so, they borrow freely and adapt cultural traits that they find useful and appealing. As a consequence, the extent of their accountability to the collective is often questioned. Aboriginal approaches to accountability, based on respect for the land and the need for responsible action, differs from Western conceptions of governance that emphasize domination and control. According to Maori, people do not have dominion over the land; but are subject to the land’s dominion.

For most Maori, ‘the land’ is understood to encompass not only the earth, but also lakes, rivers, streams and seas; the air, sky, sun, moon, planets and stars; and the full range of living and non-living entities that inhabit nature. In this all-encompassing view, the land is the source and sustainer of life. In return, people must act as stewards and caretakers of the earth for future generations. Over the past two centuries, Maori relationships with their land have been altered fundamentally by processes that have distorted (and in some cases severed) these relationships. Some Maori have been left with virtually no recognized land base of their own. Even where an exclusive land base exists, it is often

very small, a mere fraction of the people’s traditional territories or has been individualised by the actions of the Maori Land Courts and the imposition of the alien Torrens land titles system.

In most indigenous societies, an individual is imbued with a strong sense of personal autonomy and an equally strong sense of responsibility to the community. Since the welfare of the community depends on the ingenuity, initiative and self-reliance of its individual members, individual rights and responsibilities are viewed as serving rather than opposing collective interests. Traditionally, the family or clan constituted the basic unit of governance for many indigenous peoples, for Maori it was the hapu that was the basic unit of governance.

Before European nations had any dealings with the indigenous peoples of this and other lands, the whole realm of Maori being was centred on a clan system, a system of relationships that were (and still are) defined by birthright and whakapapa. This hapu system was and is a social order. The hapu system was and is a justice system. The hapu system was and is a government. The hapu system was and is an extended family unit.

More recently and within the space of two or three generations, Maori have undergone a very rapid transformation from agrarian, subsistence-level communities to a predominantly urban, wage-based society not fully integrated into national life but with a significant proportion of its membership not fully connected to their rural roots, and with a sense of marginalisation from the wider Pakeha-led society. That these social, economic and cultural issues will resolve themselves without direct intervention is unlikely.1

Participants at this conference spoke of continuity with the past, and vision for the future. They provided invaluable insights and directions from their own lifetime experiences and during their tenure of these sometimes high-profile, other-times almost invisible leadership roles. Planning for 2020 must rest on the resources that will be available then, so younger participation is crucial. Most of our current leaders will be history by 2020, even more so by 2040. Their input into planning strategies are invaluable because of their greater understanding of the position and towards facilitation. Long-term objectives can be left primarily to those who will still be around then.

Around 1960, economic conditions related to land use and land development was a focal point of Maori community debate and of government policy. The rural to urban migration of Maori as a solution to the economic depression of rural life had begun during World War II, and took hold in the late nineteen-forties and the nineteen-fifties. The magnitude of the problem related to urban adjustment took some time to manifest itself, (at the 1966 census almost 50% of the Maori population was to be found living in urban places), despite the social dislocation accompanying the growth of urbanism as a way of life for Maori. By the 1970s the debate and policies had shifted from their forerunners in several respects but particularly in a shift in emphasis from land (rural) to the urban situation.

Now at the start of the 21st century, many issues relating to Maori land use and development remain unresolved, although there is now a wider range of development possibilities than previously. Despite an increase in Maori-held wealth over the last few decades, the level of land-based wealth per capita has been depleted greatly by continuing land alienation and population increase. Neither have the urban adjustment problems of the mid-century disappeared, even though Maori are now essentially an urban people (more than 80% of the Maori population now lives in urban places). To these geographically orientated rural/ urban issues have been added others that relate to cultural identity, social dislocation, poverty, and widening gaps in access and attainment levels of well-being between Maori and Pakeha New Zealand.

Nonetheless Maori society is much more diverse than ever before. Nowadays there is a wider range of vocational and social skills and expertise, and a wider range of experience and life-styles. Generational, experiential and ideological differences have emerged, to add to the growing rural-urban differences.

Some participants spoke of the need for caution in using the term sovereignty. They noted that the word with its roots in European languages and political thought draws on attitudes associated with the rise of the unitary state, attitudes that do not harmonize well with aboriginal ideas of governance. For example, in some strands of European thought, sovereignty is coloured by theories suggesting that absolute political authority is vested in a single political office or body, which has no legal limits to its power. The classic notion of the sovereignty of parliament as developed in British constitutional thought reflects such an approach.

European understandings of sovereignty are very different from those held by most Aboriginal peoples. I do not like the word sovereignty because it denotes the idea of a sovereign, king, or ‘head honcho’, a supreme decision-maker. From my limited observations, Maori government was centred on a consultative process where everyone was involved.

The use of the term ‘sovereignty’ is problematic, as it skews the terms of the debate in favour of a European conception of a ‘proper’ relationship. In adopting the English language as a means of communication, Maori have been compromised. Accepting the language means accepting the basic premises developed in European thought and reflected in the debate surrounding the issues of sovereignty in general and indigenous or Maori sovereignty in particular.2

In this context tino rangatiratanga or mana are better terms for political authority, as they are understood not only in terms of interests and boundaries, but in terms of land, relationships and spirituality. They mean that the people take care of themselves and the lands for which they are responsible. They means using political power to express the people’s will.

Self- determination and governance too are discrete concepts; self-determination implies a state of being while governance implies a process. Self-determination is a right which all peoples have (indigenous or otherwise). Maori right to self-determination must be respected. Maori have long recognized that it is a right which operates within the context of a political and economic reality. From a Maori perspective, their right to self-determination is not detrimentally affected by the arrangements and agreements reached with successive New Zealand governments for the mutual benefit of both. While agreements must be based upon an assessment of current capabilities to govern and administer, they do not derogate from the right to modify and change those arrangements in the future

In contemporary Maori, indeed indigenous economic development generally. there are two main approaches. The first is the ‘Jobs and Income’ approach, the sequence of which goes something like this – realization that there is a problem that there are not enough jobs and not enough income to sustain the people. So we must try to get some businesses going to provide both jobs and income. Tribal planners or consultants are asked to write proposals, seek grants, look for investors, and thereby hope that through this process the problem will be solved.3

Typically this approach doesn’t work, because it seldom produces lasting businesses. Certainly some enterprises get started, but they fail to live up to advanced billing because seed funding is available to get started but is not continuous, the start-up capital is insufficient to sustain the enterprise, or investors get entangled in tribal politics and lose heart. Other business gets going but iwi authorities siphon off the profits for other things, thus the enterprise becomes primarily an employment service or a milch cow. In other cases costs rise and the business cannot compete with its rivals where payroll costs are less. Sometimes the iwi business becomes a source of patronage for leaders who seek support at election time or employment for their favoured relatives. One way or another the iwi ends up back at square one. This brings into question whether jobs and income approach, getting some businesses going or winning grants or getting joint ventures with outsiders is really a viable approach, except in the very short term.

The second main approach is called the ‘Nation Building’ strategy, (similar but much broader than Government’s ‘Iwi Capacity Building’ policies). Nation building starts with the same perception ‘we’ve got a problem’, and recognises that a big part of the problem is lack of jobs and income but the solution is more ambitious and more comprehensive than just starting up businesses to get more jobs. The solution is to build a nation where both business and human beings can flourish, by putting in place an environment where people want to invest. They want to invest because there is a good chance of monetary profits and producing a wider sense of satisfaction with a job well done. There is a commitment in this strategy that it may raise the quality of life in the community and reduce dependency on central government and/or boost iwi government.

After all most investors have choices, if they don’t see a decent possibility of profit they will go elsewhere. This strategy involves more than money, especially as the ‘investor’ is used in its broader definition not just someone with money to invest, but includes anyone with time, energy, ideas, skills or good will and not just dollars to bet those assets on the tribal future. A development plan that ignores attracting investors is in trouble. Nation-Building is a solution to that problem.

What are the components of a sound ‘Nation Building’ strategy? Certainly there is a vision to make the iwi’s sovereign status a practical reality, more than just rhetoric. Iwi need to back up their assertions of tino rangatiratanga (self-governance) with the ability to govern effectively. It is one thing to talk about tino rangatiratanga, or even to have the power to govern, but another to deliver effective governance. In the past two decades, the shift from outside control of tribal affairs to internal self-governance has placed the spotlight on the tribes‘ capabilities to govern themselves. There are fewer excuses at hand now ‘that the government did it’. The decisions that iwi make now and the capabilities that they bring to the tasks of self governance are crucial determinants of their futures. Assertions of sovereignty will have little impact on socio-economic conditions in the absence of effective governing capability.

What does effective governing capability involve? What does effective iwi self governance look like? The key is the institutions through which iwi govern the way they organize themselves to accomplish collective tasks. One of the unfortunate but powerful legacies of colonial control is institutional dependency, whereby Maori have had to rely on someone else’s institutions, someone else’s rules, someone else’s models to get things done. In many instances iwi government has become little more than a grants-and-programmes funnel attached to Te Puni Kokiri and other government agencies. This is not to say that government is always willing to hand over responsibilities to iwi. There have been and will continue to be fights over who has the rightful authority (i.e. the sovereignty) to do particular things in and with the community. Nonetheless, for sovereignty to have practical effect tribes have to develop governing institutions of their own. These may be considered in the following five categories:

Institutions of governance are the formal mechanisms by which societies organise themselves to achieve their goals. Through formal constitutions, charters, laws codes, and procedures, and through informal but established practices and norms(tikanga and kawa), a society establishes relationships among its members and between the society and outsiders, distributes rights (ritenga) and powers, and sets rules by which programmes businesses and even individuals operate.

Those who deal with that society, whether members or not, look to those institutions to understand the rules of the game. Those rules tell them what their rights are; tell them which decisions are likely to be politicised and which are not; tell them how to act in order to achieve their own goals; and to tell them what is expected in their dealings with that society, and so forth.

If the governing rules are subject to abrupt and frequent changes, then the rules of the game become uncertain, and investors are less likely to invest. Instability in governing institutions discourages investment. Instability comes not from changing personnel, but from changes that personnel make in institutions

Iwi authorities as governing institutions have to provide consistently non-politicised, fair dispute resolution. They have to be able to assure people that their claims and disputes including disputes with the iwi and hapu will be fairly adjudicated. The key to this is a strong and independent judicial system. This is a major difference between the ‘jobs and income’ strategy and the ‘nation building’ strategy. The former says ‘go find an investor or start a business’. The nation-building strategy says ‘build a judicial system that reassures investors, levels the playing field and gives both tribal and non-tribal business the chance to flourish’. New Zealand has yet to reach this point in Maori re-development. In dispute resolution, even within or between iwi, Maori must rely instead on courts, tribunals and arbitrators appointed by outsiders, largely staffed by outsiders and with a modus operandi which are also determined by outsiders.

Iwi authorities have to be able to separate politics from day-to-day business decisions. The roles of business managers and iwi/hapu governance are quite different, even though the iwi or hapu itself may own the business. Iwi authorities do not select their leaders on their ability to read market conditions, or manage a labour force or negotiate purchasing agreements with suppliers. Instead, they choose leaders on the basis of vision, integrity, ability to make wise long-term decisions, leadership attributes and so forth. When it comes to running a business what iwi need is to find the best business people available, people who know how to make businesses succeed and become lasting sources of income, jobs and productive livelihood.

To sustain businesses as businesses rather than temporary welfare programmes requires a clear division of responsibility. The elected leaders are responsible for the long-term future of the iwi. Among other things leaders consider strategic issues. What kind of society are we trying to build? What uses should we make of our resources? What relationships with outsiders are appropriate? What do we need to protect and what are we willing to give up? These are matters of political debate which elected leaders should appropriately deal with.

When it comes to personnel decisions like hiring the new foreman, or working through payroll issues on the factory floor, or purchasing, operating hours, or even putting together the business plan for the next year, these are not appropriate political matters. They are business matters and should be left to the skilled business managers to deal with.

If an enterprise in a competitive market is not itself competitive because of no clear demarcation between politics and business and the added costs that it incurs as a result, then the jobs it creates won’t last long. On the other hand a strategy that re-invests profits to maintain and expand the business eventually employs more people, or re-invests profits in new businesses accomplishes the same thing that may produce fewer jobs today, but far more jobs tomorrow.

All iwi authorities require a competent, willing and sophisticated management organisation and personnel. They are very important to negotiate from strength when dealing with government agencies and other outsiders. They get things done and done well. As iwi increasingly take over the management of social programmes, and resume their former responsibilities for sustained commercial fisheries and other natural resources and as they undertake ambitious development programmes, their bureaucratic capabilities become even more essential to their overall success. Attracting developing

and retaining skilled personnel and establishing effective service systems that protect employees from politics, putting in place effective personnel grievance systems are all essential ingredients to a competent bureaucracy. They are crucial to a tribe’s ability to govern effectively and thereby initiate and sustain a successful programme of economic development.

The task of governing institutions is to back up expectations of iwi/hapu sovereignty with the ability to exercise that sovereignty effectively. That is where sovereignty pays off – in its effective exercise. But where do these effective institutions come from? Should they simply be imported from somewhere else? Cultural match refers to the match between governing institutions and prevailing ideas in the community about how authority should be organised and exercised. Such prevailing notions are part of the culture of the tribe. Governing institutions match a society’s culture when its governing authority is exercised and its members regard that as legitimate. When the culture match is high, the institutions

of governance tend to be held in high regard, have the support in the community, commanding allegiance and respect. When culture match is low, so too is legitimacy, and governing institutions are more likely to be ignored, disrespected and /or turned into vehicles for personal enrichment. Institutions of government have to have legitimacy with the people if they are going to work. This is not necessarily a signal to revive traditional governing systems that were designed for a very different environment than today, and had to meet the challenges of their times. Iwi governments operate in a very different environment today and have to solve very different kinds of problems. Not only have the demands on iwi authorities changed but the ideas carried in the community, the iwi cultures have changed too. The trick is to invent iwi governments that are capable of operating effectively in the contemporary world, but also to match people’s ideas, traditional or not, about what is appropriate and fair.

This wananga on indigenous governance and accountability was noteworthy because it has brought together people with a range of different backgrounds and ideas: academics, officials, politicians, practitioners and iwi/hapu trustees, all participating in the debate. All had their own ideas about the lack of symmetry in the interface between indigenous peoples and governance and accountability; each has his or her own story to tell: and each has their own proposals for remedy. This is not to suggest that the wananga was characterised by disagreement. Indeed, almost all those present held much in common and agreed on even more. That the current situation needed remedy was a universal position. What was up for debate was ‘how’, and ‘when’ and ‘in what priority order’ should the many issues of an imbalanced governance and accountability be tackled.

We had the advantage of a two special guest speakers. From aboriginal Australia, Mick Dodson the Aboriginal & Torres Strait Islander Social Justice Commissioner and former Director of the Aboriginal Law Centre at the University of New South Wales and from the Circumpolar region Joern Berglund Nielsen an aboriginal Greenlander and Consultant to the Greenland Home Rule Government.

Mick Dodson drew on his experience as an academic, as a community lawyer and an advocate for his people. In addressing the issue of checks and balance he described how over two centuries Australian and New Zealand indigenous populations have been dominated by the ‘newcomers’ systems of governance which were alien to the ancient systems of the peoples whose land was invaded. Joern Berglund-Nielsen emphasised the value of local community decision-making and the organisation of governance in Greenland into communes. National integration there was maintained by very effective radio and television communications networks, which linked all communes.

The contributions made by New Zealand politicians were of particular importance, given that 1999 was an election year, and all of the major political parties were invited to contribute to the wananga. In the end, only the National/NZ First coalition government, and the Labour opposition were represented. In the time that has elapsed since the wananga and the appearance of this volume, both public opinion and political fortunes have turned. National party ministers who contributed official government positions were Tau Henare, Minister of Maori Affairs, and Georgina te Heuheu, Minister for Courts. Since then Georgina Te Hueuheu has moved to the opposition benches, Tau Henare is no longer in parliament, and Sandra Lee, who was at the wananga as the Alliance and Mana Motuhake spokesperson has assumed ministerial responsibility herself. Their ideas visions and pronouncements take on different hues inside government than outside, in a new Coalition government and vice versa. Their papers and speeches can be examined for continuity and consistency with more recent statements.

Participants were able to consider some interesting, contemporary and recent research findings and heard about some ‘on-trial’ and ‘experimental’ governance structures, many of which ‘have at least a genesis’ in Maori thought and tikanga, and a ‘recognition’, however preliminary or restrictive, of official responses to tikanga. There were discussions too, on giving more recognition to indigenous peoples’ custom and law in national jurisprudence here, in Australia and Greenland. There were insights into a notion of ‘ governance and accountability structures which are not perfect, but nor are they impervious’. Governance itself is not inherently or philosophically unfair, but the bases are loaded and greater balance is recognised by those in the sector as both needed and possible.

Contract based and kinship based systems are compared and contrasted. Is whanaunatanga a form of nepotism in disguise and if it is, so what? Whanaungatanga is a key concept in Maori social organisation. Market models and contractual arrangements require specific performance. Kinship based models require diffuse responsibilities and accountabilities. How can the accountabilities that are expected by the beneficiaries be delivered? The Crown argues that in its interpretation of such actions, they constitute nepotism and are thus unlawful.

The denial of a constitutional framework for indigenous governance has meant that Maori have rarely had the opportunity to exercise self governance, in New Zealand since the time of the 19 th century charismatics, Tawhiao, Te Kooti, Te Whiti and Tohu. Western models of government are understood i.e. the framework of governance, its structure, function and development, are understood. No such structures exist for Maori, national, regional and local elections are alien to an indigenous model. Tried, tested and accepted models to ensure the type of indigenous governance that Maori need, rest on tikanga, on ‘nga mahi a nga tupuna’. Maori governance requires building on that and leaping into the 21 st century with much of that tikanga intact.

The Crown insists that modern day Maori governance needs to be based on constituencies, voting eligibility, methods of choosing representatives, terms of office, policy direction, regular structural reviews, dispute resolution and accountability mechanisms, all basically western in structure. In dealing with accountability to beneficiaries a tension exists around decision-making. The Crown expects iwi decisions to be taken democratically i.e. by a vote, ideally by secret ballot. This still rankles with many iwi authorities as it undermines their mana by replacing the rangatira by the ballot box. Thus the question is posed (often with some reluctance) who should vote and what should their vote be worth?

What sort of iwi, hapu or national registers are appropriate for Maori? How should people register as beneficiaries? What forms of accountability are appropriate? How should beneficiaries be counted? Should beneficiaries, by right of whakapapa be entitled to register on more than one iwi register? Should each vote have the same value or should votes be weighted to take into account te iwi noho taone, te iwi kainga, tai tamariki, rangatahi and pakeke?

Indigenous knowledge refers to the complex set of knowledge and technologies existing and developed by populations and communities indigenous to a particular area. Indigenous knowledge systems can also develop within communities descended from populations that inhabited a country at the time of conquest or colonisation. These populations, irrespective of their legal status, retain in part or in whole, their own social, economic, cultural and political institutions and their values and their laws or tikanga.

An understanding is required of indigenous knowledge and its role in community life. From an integrated perspective that includes both spiritual and material aspects of a society as well as the complex relation between them. At the same time it is necessary to explore the potential contribution of indigenous knowledge to local development. Research is required for the protection of indigenous knowledge, for its utilisation for the benefit of its owners and the communities where it is practised.

Indigenous knowledge systems have been suppressed by colonising peoples. Colonisers who operate nation states have ignored, debased or actively destroyed aboriginal knowledge, values and aspirations. Therefore indigenous knowledge should be brought into the mainstream of knowledge to establish its place within the larger body of knowledge. The socio-economic potential of indigenous knowledge should be considered, as well as its other values, such as the impact of indigenous knowledge on lifestyles and the ways in which societies organise and operate. Ideally, research into indigenous knowledge systems should be carried out with the participation of the communities in which they originate.

Te Runanga o Ngai Tahu Act of 1996 and subsequent Charter established Te Runanga o Ngai Tahu and its basic form of governance. Albeit a relatively young organisation, it has been recognised for its leadership, stability, adaptability and excellence in performance. Since 1998, tribal equity has increased from $30 million to over $270 million4. The Ngai Tahu charter created a clear division between tribal development undertaken by Ngai Tahu Development Corporation and its commercial activities run by Ngai Tahu Holdings Corporation. This separation was considered fundamental to the sound governance of tribal activity. Ngai Tahu have demonstrated that commercially based solutions, involving the 18 regional runaka of Ngai Tahu can achieve win:win situations for all parties involved in the best use of Ngai Tahu related resources. Ngai Tahu demonstrate the diverse range of investments and involvement by iwi being developed and implemented by the Development Corporation and the Holdings Corporation.

Te Runanga o Ngai Tahu Act 1993 was the ultimate vehicle for Ngai Tahu re- organisation, self determination and control, although it falls short of providing Ngai Tahu with the power of government. Through the act, Ngai Tahu became a body corporate with all the perpetual succession and the rights, powers and privileges of a natural person and with the right to draft a charter to determine how the iwi’s affairs will be run. The Act being purely administrative in function. The heart of the matter is that the Charter has everything to do with Ngai Tahu and nothing to do with the Crown. There are few paternalistic restraints on Ngai Tahu, they have removed most of the shackles of colonialism, save that the 1996 Act can be repealed by a simple majority in the New Zealand parliament.

In contrast, concerns over the fundamental dealings surrounding Tainui Maori Trust Board, which settled a $170 million raupatu claim against the Crown in 1994 found pressure by 1998 for a full public inquiry into the Trust Board’s financial husbandry, corporate governance, investment and what some see as an abrogation of iwi responsibility when they sold off the Huntly housing stock. Board members and employees became embroiled in litigation and public argument over such things as luxury cars and corporate box at Ericcson stadium, overseas travel, and the basic tension between centralisation of the tribal wealth in the hands of the kahui ariki and wider distribution through a more representative ‘democratic’ structure.

Settlement assets are not held under statutory trusts but through the Tainui Trust Board Act then held by the Waikato Raupatu Lands Trust. This approach meant Tainui were answerable to Tainui alone, trustees and managers were able to avoid the political constraints of the Maori Trust Board Act 1955. However there are no statutory requirements imposed on charitable trusts like the Raupatu Lands Trust, requiring it to file its financial statements publicly. Only the Attorney General can intervene when there are concerns about the operation of a charitable trust. Establishing the Kauhanganui marked a new era for the people of Tainui, new even though the name itself derived from Potatau’s time.

Sir Robert Mahuta noted that Tainui-Waikato needed to define commercial and non commercial objectives and needed to separate governance and management structures. The challenge was to manage, protect and develop capital to promote long term benefits for the tribe. The tribe was unable to do this in the climate of mistrust that existed until recently. Building governance is like building a house you need sound foundations for a sound structure for the right occupants.

The Volcanic Interior Plateau (VIP) Project, started in 1999 and planned to conclude in 2003, has as its goal to transfer the ownership of Crown Forestry Assets in the Volcanic Plateau to claimant based governance structures. Their vision is:

‘to restore the economic, physical and social ability of tangata whenua within the Volcanic Interior Plateau to determine their own destiny by developing self governance arrangements which enable them to achieve an honest, timely and efficient settlement of their outstanding treaty claims’ 5

Whilst Crown policy requires settlement to occur at iwi level, VIP seeks to initiate a cluster-based economic development model to dovetail with the post settlement governance structures that seek to return the settlement assets to hapu. To ensure that existing land trusts in the participating iwi (Te Arawa & Tuwharetoa), the concept of a grand council (Runanganui) based on hapu representation is proposed, there will be a place for land and resource trusts in that runaganui.

A tension exists between the mana of hapu and the expediency of dealing with iwi. In her seminal work on the dynamics of tribal organisations, Angela Ballara traces the history of iwi and hapu from eighteenth century to the mid 20 th century She notes that in pre contact Maori society there were hierarchical structures known as iwi (or tribes) which comprised a number of hapu or (sub-tribes). In the eighteenth and nineteenth century the hapu was politically independent. Generally groups of related hapu were spoken of as iwi or people, but iwi had no everyday political role except when under

Naturally governments prefers to deal with iwi for expediency purposes. They do not relish the prospect of dealing separately with 700 or more politically independent hapu and therefore promote the concept of iwi federations and iwi settlements if only to make their own task easier. Nowadays the accountability mechanisms implied by trusts are essentially political in nature rather than commercial. Political accountability mechanisms tend to be less sharply focussed and slower in operation than commercially oriented accountability regimes.

Where an iwi has been in settlement negotiation, the pool of talent and experience appropriate to that type of operation is normally highly developed. However the skills and talents required for settlement negotiation are not the same as those required for commercial management. In speaking about the education and preparedness of Ngati Whatua o Orakei for their protracted negotiations with the Crown over their land at Takaparawha, one of the interim board rather ruefully remarked that “our management experience were about equal to that of a local tennis club committee”6 .

Angeline Greensill gives us one instance of a further grievance being created from a settlement. She quoted from a submission made to Te Whare Ahupiri7. Here in the matter of the Crown’s fiscal settlement of Tainui’s raupatu claim8. The applicant Te Ariki Manaki Kewene objected to the Crown vesting their hapu lands at Hopuhopu in other iwi authorities without consultation with them as the original owners. The original donors of Hopuhopu were Ngati Whawhakia. This particular example deserves explanation for the reason that the example shows up a serious and potentially damaging aspect of treaty settlement which created further grievance.

In 1853 Heta Tarawhiti, chief of Ngati Ngaungau gifted 1385 acres of land at Hopuhopu. The Govenor issued a school grant for Hopuhopu to the Bishop of New Zealand so long as the land was to be used to support and maintain a school for religious education. A school opened in 1857 but ceased to function a decade later. By 1873 Heta Tarawhiti asked the Church Missionary Society [CMS] on behalf of his hapu why the land had run to gorse, why the school was closed and why the land had not been returned to them? The CMS without consultation then promptly leased out the land for a period of 42 years.

At the beginning of the 20 th century descendents of Heta Tarawhiti, petitioned the CMS and the Government for not adhering to the conditions of the school grant. This was investigated by a Royal Commission of Inquiry in 1905. Continuing on, in 1920 Hone Pere and 41 other descendants of Heta Tarawhiti petitioned parliament for the return of the land. However in 1922 the Crown acquired the land through the Public Works Act. In 1950 another generation of descendents from Ngati Whawhakia and Ngati Ngaungau sought information on previous petitions to determine their position or current status. Apparently this was to no avail, as the Crown continued to hold the land for defence purposes.

In 1991 the Government vested the land (Now declared surplus for defense requirements) to The Tainui Maori Trust Board, an iwi authority which said that it represented only 33 hapu throughout Waikato. The transfer of Hopuhopu was in partial settlement of the Tainui-Waikato Raupatu claim. Amongst those who benefited from the settlement were hapu of Ngati Haua and Ngati Maniapoto. The Crown’s action was taken without consultation with the direct descendents of the original donors who were unaware of the Crown’s intention. In March of 1993 Heta Tarawhiti’s descendents appealed against the vesting, however the Maori Appellate Court declined their appeal and in the following November 1993 failed to uphold their interlocutory injunction. Every inquiry or petition was forwarded by Heta Tarawhiti himself or his direct descendents.

All this occurred despite the Crown being reminded that the Articles of the Treaty of Waitangi are protected by Te Awaranginui O Mokai the authority granted by Queen Victoria of England to the Maori nation, the right of free carriage of Westminster if her government is found guilty of an injustice. This right was reaffirmed by Edward VIII in 1936 but ignored by the New Zealand government.

Perhaps we are at a unique stage in national development for indigenous peoples to take back control of that which is rightfully theirs. This is an overwhelming expectation of indigenous peoples, and will happen within our lifetimes and will affect the future of hapu and its members. To settle claims and plan for the future with certainty without risking Tainui, Muriwhenua or Taranaki type struggles for power and order. Without good governance hapu will have difficulty in settling, will be isolated from critical strength of similar organisations coming together and will lose even further what faith they have in an equitable future for their membership.

This wananga was developed from the base that the environment of iwi governance is undergoing social and political change and that it is necessary for both Government and iwi to understand fully the implications of these changes and be able to assess their significance within the iwi perspective. To do this they need to examine clearly iwi ideology or philosophy. Those charged with governance and accountability are required to adjust to change and to the acceptance of an increasing degree of social responsibility.

As more iwi reject the ideas, identities and models of government imposed upon them and return to their own traditions, Maori leaders and government policy makers alike will need an understanding of traditional thought and its application to contemporary concerns.Various intellectual conflicts emerge when dominant historical narratives are related to those of Maori. It can be argued that the conventional historical view of Maori/Pakeha relations is flawed, most Pakehas understanding of history has been prejudiced by the situation of their knowledge within a colonising framework. How can authorities be accountable to their iwi if they are always in contestation with the state over issues of identity and inclusion?

Settler society and the states that have emerged in the modern era such as Australia, New Zealand the United States and Canada have claimed the right to determine who is indigenous. The state manipulation of identity issues and membership entitlement further advances an assimilation agenda which has led to the serious crisis of representation within indigenous communities themselves and encourages the retention of Anglo hegemonic views characterised by Ngati Redneckery9

It is a sad political fact that there can be no consideration of autonomy or meaningful self

determination while groups of people are dispossessed and in a state of economic dependency on external authorities. Maori were denied access to their lands and to the economic benefits of having ownership of their land recognised. At the same time, they have been victims of racial discrimination and oppressive measures within the political/colonial system. They remain largely outside the economic mainstream and collectively have not attained the education and skills necessary to take full advantage of opportunities within the modern economy of Aotearoa.

In promoting the Bay of Plenty (Maori Constituency) Empowering Act, the Bay of Plenty

Regional Council was conscious of the lack of Maori representation on local bodies. Their concern was given greater authority by the demographics; Maori comprise 28% of the Bay of Plenty population and own half of the land, including half the land available for development. But Maori have never reached 28% of council membership indeed, few Maori are ever elected to local or regional bodies in the Bay of Plenty. This Act introduces a Maori electoral roll at local level and to ensure that Maori are be better represented at the council’s tables. To some this is anathema, to others it is not just appropriate but long overdue. These latter give the existence of Maori seats in parliament for almost 140 years as a precedent. The Act may ensure that Maori elected to local councils will not be beholden to Pakeha electors for their positions but to Maori electors.

I believe Maori are a practical and resourceful people, who when given the opportunity to pursue the different options available to them, will create the best of possible futures for themselves and their people according to their individual talents and circumstances. Maori want to design a society and economy that enables them to participate effectively in both the old ways based on the land and its bounty, as well as in the new ways based on space technology and world wide communications or what is currently being called the ‘Knowledge Economy.’

The political and social realities facing contemporary Maori leaders are constantly shifting and have demanded an increasingly sophisticated response. Vision is the driver of board governance. The governance vision describes three facets of board leadership – board impact, image and culture. If we have learned anything over the years it is that the answer to building stronger Maori communities does not lie in some government program it lies with the Maori communities themselves.

As Maori deconstruct colonial attitudes, they will reaffirm beliefs and structures to revitalize traditional spiritual and cultural aspects of their societies. This is premised on the conviction that contemporary indigenous identities, institutions and movements must be rooted in traditional values to be authentic and appropriate.

In NGAI TATOU 2020 our objective is not just to look ahead but to gain an appreciation of the depth and complexity of traditional Maori culture, to approach a basic understanding of Maori modes of expression, and to group the fundamental tenets of the Maori world view embedded within those forms of cultural expression. From there, the whole of society can progress in greater unity.

The unique situation of Maori collective rights within the law is an extremely complex issue. Aside from the fact that Maori people themselves have laws and are party to the Treaty thus define their rights clearly, state agencies have attempted to redefine Maori through legal fictions that support the colonial enterprise and its foundational myths. Maori signed the Treaty of Waitangi to formalise the relationship they were entering into. The Treaty was an instrument of international law that recognises the inherent nation to nation relationship between Maori and Pakeha signatories.10

A Change of Government

The wananga was held in September of 1999 some two and a half months out from the general election. In their election manifestos, the following points were made:

The Alliance proposed more money for the Waitangi Tribunal, better public education about the Treaty. Maori should choose their bargaining agents not Government.

New Zealand First proposed more money for the Waitangi Tribunal, to ensure bargaining agents are representative and believed any deadlines on claims would be unhelpful.

National proposed to continue treaty settlements. And did not believe durable settlements would come from forcing negotiations.

ACT proposed to end claims by 2010. No more claims should be accepted after 31 December 2000. All race-based laws repealed and Maori seats in Parliament abolished by 2006. Under their catch cry of “full, fair and final” all treaty settlements would be finalised. Clearly worded that should have meant that settlements would be 100 cents in the dollar rather than the usual I or 2 cents in the dollar being paid out now. These are neither full, nor fair and therefore settlements are unlikely ever to be final.

Developing the capacity for good governance can be, and should be, the primary way to eliminate ‘gaps’. The challenge for all societies whether nation states or indigenous peoples is to create a system of governance that promotes, supports and sustains human development, especially for the poorest and most marginal. But the search for a clearly articulated concept of governance has just begun.

Governance can be seen as the exercise of economic, political and administrative authority to manage an iwi’s affairs at all levels. It comprises the mechanisms, processes and institutions through which beneficiaries articulate their interests, exercise their legal rights, meet their obligations and mediate their differences. Governance must be open to scrutiny by the political beneficiaries i.e. it must be accountable. Good governance must be, among other things, participatory, transparent and accountable and ensure that political social and economic priorities are based on broad consensus.

“…governance is...holding the balance between economic and social goals and between individual and communal goals…the framework is there to encourage the efficient use of resources andequally to require accountability for the stewardship of those resources…”

When governance does not function effectively, scarce resources are wasted. When it does not have

legitimacy in the eyes of the people, it cannot meet its objectives or theirs. Good governance demands well-functioning and accountable public and private institutions. It requires people’s empowerment and participation. It entails mobilising social capital for development. Representation is inevitable in large societies, but it is inevitably imperfect. Agents do not speak with the same authority as principals.

Research in the area of the relationship between institutional factors and development of Aboriginal communities in North America was sparse until comparatively recently. But over 18 years, Stephen Cornell and Joseph Kalt, have conducted an empirical study on American Indian Reservations as part of the Harvard Project on American Indian Development. In their conclusions, three factors determine why some tribes develop and others do not. These are:

There is now a growing body of work on the question of Aboriginal governance and, in

particular, what might constitute sound governance from an Aboriginal perspective.

I return in conclusion to the note on which I began. Iwi over the centuries have shown an infinite capacity for adjustment, but the pace of past social change and hence of iwi adjustment was leisurely. The social movements of our time are rapid and escalating. Tendencies, which previously took perhaps several generations to work through to a culmination, have now been brought to a decision in a matter of a decade or even less. Accordingly, modern conditions require trust board and management attitudes to be at once far more perceptive, anticipatory and flexible than those previously found adequate. This is the greatest challenge for iwi governance and accountability nowadays.

Any structure that results from a Treaty settlement will have long term impacts on tribal

governance and therefore must ensure a wider vision than any Treaty settlement. Western law alone is not always going to drive relations in this country.

While sovereignty is inherent, it also has an historical basis in the extensive diplomatic relations between iwi and hapu and European powers from the early period of contact onward. In the eyes of many the fact that the British Crown concluded treaties demonstrates that these nations were sovereign peoples capable of conducting international relations.

Maori see their right of self-government as an inherent right that does not come from government. It does not originate in the treaty. The right of self-government and self-determination comes from the Maori people themselves. It is through their authority that they govern. The treaty reflected the Crown’s recognition that Maori were, and would remain, self-governing, but neither the Crown nor the Treaty itself created Maori nationhood.

Finally, this wananga on governance and accountability does not stand alone, but is part of a wider planning strategy called Ngai Tatou 2020. This is an educational strategy whereby Maori will be able to propose, discuss and agree on suitable pathways to the future, Ngai Tatou 2020 looks towards the year 2020 and makes plans for how Aotearoa/New Zealand will be for our mokopuna (descendants) to inherit. Ngai Tatou 2020 is not solely a Maori strategy, but rather a Maori-led strategy, which involves all of us, all New Zealanders, Maori and Pakeha, present and future, who can be informed by valued historic and contemporary Maori perspectives. Papers and participants were carefully chosen to bring a wide range of perspectives and responsibilities to debate. Several of the presenters whose papers are reproduced herein, speak about what is happening now on the social political and organisational fronts, and how these moves (or lack of moves) are likely to affect our lives over the next twenty years.

Maori leaders Sir Graham Latimer, Sir John Turei and Justice Eddie Durie urge us to look beyond 2020 to 2040, the 200 th anniversary of the Treaty. At Waitangi in 2001, they broached a longer term planning strategy Rua Rautau, looking towards the year 2040 when all of this nation will be celebrating our bi-centenary. The Rua Rautau strategy is Maori-led. It will involve long-term visionary planning with five-yearly assessments related to the regular census enumerations. The first population census of this century/millennium was conducted in 2001. That is the first benchmark. Ngai Tatou 2020 looks towards the mid-point of that Rua Rautau - 40 year plan.

This hui manifested a clear desire to generate a better future where being Maori is positive, and where participation in the wider world, the global economy are all acceptable givens, not alternatives.

As Bishop Manuhuia Bennett said in his introduction ‘this generation stands as the link between past generations and future generations. It is also a link between the values of the past and the values of the future and between the expectation of those past generations and our expectations for our future’. Manuhuia himself stood as a major link with the past generation of Sir Apirana Ngata, Te Rangihiroa and Pei Te Hurinui Jones, it is important to record here his passing on 23 December 2001.

Haere atu ra e te rangatira Manuhuia, haere ki Hawaiki nui, ki Hawaiki roa, ki Hawaiki

1 Douglas & Robertson Shaw (eds), 2001, Ngai Tatou 2020 Indigenous People & Justice

2 Maori concepts of the mana and tapu of hereditary leadership were not far removed from the connotations of the ‘Divine Right of Kings’ In November 1856 when Te Whereowhereo was made king, many of his followers were unhappy with the title, they preferred the traditional term Ariki Taungaroa. The elevation of Potatau was the most nationally representative gesture that Maori had made since the Treaty of Waitangi in 1840. In Waikato the immediate function of the kingship was specific and practical. It formalised a system of local government that had begun to evolve in the preceding years. Communities set up runanga or councils with the local chiefs acting as magistrates and over the runanga lay the mana of the king and his council of twelve advisors. This system allowed life at village level to be regulated in a manner that the system of national government had been unable to achieve

3 Cornell, Stephen & Joseph Kalt, ‘Sovereignty & Nation Building’, American Indian Culture & Research Journal, Vol22, No3, 1998

4 Tino Rangatiratanga Mo Tatou, Mo Ka Uri a Muri Ake Nei – Creating Our Own Destiny For Us and Our Children After Us Ngai Tahu 2025, Te Manako o te Iwi, October 2001 p34

5 Volcanic Interior Plateau Annual Report 1999-2000 P.4

6 Kawharu, H. 2001 pers comm

7 Te Whare Ahupuri was initially set up by the Confederation of Chiefs of the United Tribes of Te Runanga Ko

Huiarau, or the United Tribes of NZ, also sometimes called the Confederated Tribes or “Te Whakaminenga o

Nga Hapu o Nu Tireni as in the Declaration of New Zealand 28 October 1835 or the Treaty of Waitangi 1840

This Maori Court existed long before that time when the United Tribes first met as a body in 1816. This ancient

Maori Court had several procedures and strict rules. In pre European times i.e. pre 1840, and according to tikanga, hapu or iwi had the right to seek an audience with the Taiopuru being the sovereign Head of the United Tribes. Each hapu has an opportunity once a year to air their grievances from sunrise to sunset. According to the ancient laws a member of a hapu was selected to karanga on three separate occasions calling on their Taiopuru announcing their grievances affecting the hapu. Once the karanga was completed a period of 42 days was the waiting period before approaching the Taiopuru whare to receive instructions from a messenger to when the Court would sit. One chief and three members of the hapu were to attend the Court hearing. (Forbes, Mary He Panui 30 09 1995)

8 Forbes, Mary He Panui 30 09 1995

9 A term coined by Ngaitahu leader Sir Tipene O’Regan to describe the perpetrators of criticism of his tribes Treaty claims

10 The broad principle in the Treaty of Waitangi that Maori people may retain their own lands in accordance with their own customs and their own customs to govern their dealings with each other found expression in the NZ Constitution Act of 1852. It was an Imperial Statute introducing representative government to the colony. Sect 71 of the Act provided for native laws to govern native people and native districts in which those laws would be supreme. The principle was important for Maori people. New Zealand’s history is marked by continuing Maori attempts to assert tribal law and autonomy both before and after the Constitution Act of 1852

11 Cadbury Sir A, Preface to Corporate Governance: A Framework for Implementation