Indigenous Governance And Accountability

 

Donna Hall, Principal, Woodward Law Office

 

 

Governance is a core function undertaken for only one reason, to manage a group in an efficient manner which will help achieve the group's goals.  It is the business of conducting the policy actions and affairs of a group, with the authority or mandate of that group.  The principle can apply equally to Maori, or to the State, to commercial corporations, to incorporated societies or any other body.

 

Developing a constitutional framework takes this one step further. Constitution is defined in the dictionary as a body of fundamental rules. 

 

The challenge of a constitutional framework for Maori is four fold,

 

        the balancing of power in Maori organisations;

 

        the formation of Government structures;

 

        judicial development; and

 

        the development of national structures.

 

In developing this theme I propose to draw on the experience I have acquired over the years in working with Maori groups at all levels.  So we have:

 

 

The Tribes: The Hapu, guarding their autonomy and independence. Marae based.

 

 

The Super Tribes: Iwi, trying to maintain the consent and support of the Hapu & their members.

 

 

Urban Maori Authorities: UMA's like Te Whanau 0 Waipareira and Mataawaka.

 

 

Mokai Kainga: A modern Maori community operating here in Wellington, but not an UMA

 

 

Ratana: A movement, a following; essentially pan tribal and national in overview.

 

 

Federation of Maori Authorities: The land owning elite of Maoridom.

 

 

 

Maori Women's Welfare League: Pan-Tribal and National in overview, membership

                                                     restricted to women.

 

New Zealand Maori Council: Pan-Tribal and national in overview. Needs a facelift and

                                                  a body  reshape. Has two strengths,

 

a)      legislation, and

b)      solid leadership

 

 

Maori Congress:  Loose collection of the tribes at both iwi and hapu level.

                              A wonderful vision, but what went wrong.

 

 

All of these groupings seek to achieve recognition for the Maori people who support them, and belong to their organisations.  The trouble comes when these organisation's constituent parts start to collide internally or worse, they bang into each other externally and fight.  Which brings me to the need for a balancing of power in Maori organisations at all levels.

 

In considering structures for Maori governance I think there are at least three imperatives to balance.

 

1.       The commercial reality: By this I mean that it may be necessary to have persons to manage or develop group assets who have competent commercial skills but who are required to be neutral as to the groupís broad policies.

 

2.       The cultural reality. By this I mean that it is necessary to have persons adequately skilled in Maori ethics and values to develop appropriate Maori policy for the group.

 

3.       The social reality. By this I mean that the development of people is as important as the development of capital and that this must be seen in the context that many Maori are at risk.

 

These three imperatives compete in all levels and are illustrated with four examples.

 

 

1.       When accountants, lawyers, or corporate warriors control the direction of a tribe or other Maori group, simply by their decisions or their greater ability to apply money in particular ways, so as to achieve one or other end, then there is an imbalance.  The commercial imperative has taken dominance over the cultural reality.  The tribe is at risk of being cloned into a corporate starship, to which it may be unsuited.

 

2.       When tribal or other group representatives without commercial experience end up controlling tribal assets then you have another form of risk, that is the asset are at risked.  Here the cultural imperative has taken dominance over commercial realities.

 

3.       When tribal representatives and corporate warriors combine to develop tribal assets but forget the people who are at risk, the structure becomes divorced from the people.  Here economic and cultural imperatives have taken dominance over social realities.

 

4.       When all the money is spent on the immediate needs of the people, then the corporate asset is at risk for future generations.  Here the social imperative has taken dominance. I consider that traditional structures must be re-fashioned to deal with these realities and we may take advantage of western models and experience when we do this.  From my own experience I can say that where there is clearly room for conflict, I now advocate there should be a severance of powers so that one may balance and check the other.

 

In brief,

 

1.       The functions of commercial operators should be defined so that they have freedom to operate in their own sphere without interference from marae grown economists.  By the same token these commercial operators must be restrained from moving into prescribed areas that require determination by representatives of the beneficial groups.

 

2.            Conversely the role of representatives of the group should be defined so that they do not intervene in commercial decision making but do take control of policy formulation.  The body for doing this may be called the runanga, but many other names would do. I will use runanga for now.

 

3.       The runanga should have a social arm for the development of the people.

 

4.       While the runanga is like a House of Representatives the runanga should reserve a place for representatives of both the commercial and social sectors to attend.  These should put arguments to the runanga, on their respective views before the runanga determines developmental policy.

 

 

 

 

 

The formation of government structures:

 

 

The traditional structure as I see it, was that the effective unit for day to day operations was the hapu, a group of a hundred or so closely related persons having one or more marae.  Each was autonomous but regularly acted in concert with one or more other hapu in the area.

 

In the 19th and 20th centuries there were various efforts to develop larger regional and national structures for integrated operations.

 

There is nothing to stop the development of larger institutions today, as with the iwi runanga, though I suggest that the structure should reflect the underlying traditional ethic.  That ethic, as I see it, is that the autonomy and authority of the base unit, the family or the hapu, should be respected and upheld.  Put another way, the power is not with the runanga but with the people.  It should be remembered too that the runanga is never the tribe.  The tribe is the tribe.  The runanga is merely a place where tribal thinking can be developed.

 

What this means in practice is that efforts should be made to devolve funding to marae or local cells to undertake their own operations.  The thought is that a tribe works best if the base is solid and as much work as possible is done at a local level. I should imagine that the same principle will apply in urban situations.

 

This can be put conceptually.  In western society power resides in the central agency of the national government, which distributes power from the centre.  The power of the people is represented only in elections at prescribed times.  In indigenous societies power is represented in local bands or hapu, and anything above that is really some form of federation with no greater power than that which the local and autonomous bodies may subscribe to from time to time.

 

I think that today, scales of economy and political realities require a more regular centralist agency, whether it be a iwi runanga or an urban authority, with an asset base of its own. I do not hold to a view that there can only be one structure particularly if that ends up being forced to fit some purist model.

 

What I would promote is devolution to local cells to the extent that is practicable. I promote that not only because it is consistent with our traditions, but also for the practical reason that tribal strength is not actually in money but in people.  It is necessary to look to where the people are actually at and to encourage them to develop their own initiatives, suited to their own circumstances.

 

Under the system that I would promote, the fragmentation of hapu is not a problem.  The more the hapu or operating cells, the greater the tribal strength.

 

There are a number of ways that a centralist runanga can be established.  It may provide for a kahui ariki.  It may have a kaumatua body with a special system for appointment.  It may have a body of expert advisers.  As I have said there should be a place for commercial and social representatives to express concerns before decisions are made. I would expect this body to appoint the commercial asset managers and to prescribe those matters in which it may act independently and those matters where it should seek policy directions from the runanga.  It would need to establish the accountability of the commercial arm to the runanga in explicit terms.

 

I would expect the runanga to have a team of social advisers.  It would also have its own executive.  But fundamentally it would be comprised of representatives of the various hapu. I do not see that the runanga need represent only one tribe.  In some districts it could be multi tribal.  It could be a runanga for all the tribes of a particular district.

 

However, I stress the need for a constitution that sets out the basic principles and beliefs.  It should be required that all powers in the constitution are to be read in terms of those principles and beliefs.  It might acknowledge for example the principle of hapu autonomy and the desirability that the runanga should not become a controlling agency but a facilitator of local development.

 

Decisions may then be based against the achievement of those principles and beliefs.

 

This structure runs counter to the idea of a democratic decision by all persons enrolled on a tribal roll.  It means that decision-making is restricted to those who actually participate at the local or marae level.

 

Formal structures for local or hapu runanga could also be developed if the local people wished.  It may have its own commercial and social arms.  Representation might follow the more traditional kaumatua system.  Under that system the hapu defines the principle family lines and each of the families appoints its own representative.  Of course the actual structure will depend upon the circumstances of each particular case.  These are just ideas for now but I do think, that if a written founding document of some sort is developed, then it must begin by defining the values and beliefs to which the hapu subscribe, so that future decisions can be debated in terms of those criteria.

 

 

Judicial Development:

 

Contrary to popular belief, I am not opposed to the retention of the Maori Land Court as such.  What I am opposed to are some of its current practises. I think that the Maori Land Court has become overly fond of the sound of its own voice and tinted about the brilliance of its own point of view.  It has become casual with regard to the wishes of the people.  Or it intervenes when it should not in commercial decision making.  Or it manipulates the people.  Or it takes the power from the people.  Or in seeking to find answers it fails to maintain a truly neutral and judicial role.  By that, I mean, that the court often talks to some of the people (other than in open court) and then has a fixed mind on the matter. I also think that sometimes the court treats Maori like children.  Or the court is insufficiently informed of tribal dynamics or of cultural development objectives.  Such training as the current court has, stems from the law of precedent and comes straight out of Westminster.  In the area of custom, the Maori Land Court has no greater experience then anyone else.  A perusal of the section 30 decisions from Te Ture Whenua Act, on mandate and representation are proof of the view that this current court knows little about custom.

 

An illustration, on the appointment of managers or trustees of tribal assets the court has placed weight on appointing only those with commercial expertise and then sacking them if the court thinks they have done something that it doesn't agree with.  It has not placed equal weight on ensuring that these managers are accountable to the people.  By that I mean that the court has not considered the structure required to ensure that the people are represented in a body of their own, that that body should appoint the commercial managers, that the commercial managers should be answerable to the body that appoints them, and that the court should be a place of last recourse.

 

The effect of what the court does is to allow the commercial managers to take control of the tribe, and to determine important tribal policy by its allocation of money.

 

I am presently dealing with a case where mandate and representation is in dispute.  One party was formed by the people of the hapu coming together as a runanga.  This runanga clearly has people support.  In competition with the runanga, for mandate to oversee and distribute fisheries assets is a trust established by the Maori Land Court.  Two individuals were appointed to manage the trust on behalf of the hapu and neither of them belong to the hapu.  While they may have whakapapa links to the hapu they do not attend hapu tangi or marae clean ups or important tribal meetings.  Little wonder that hapu see these two as outsiders.  Yet the Maori Land Court can merrily make these appointments with scant regard to the wishes of the people or the mana of the hapu.


Having set out my views of the capacity and disciplines operating within the Maori Land Court I go on to say that we should not throw the baby out with the bath water.  There is a very important role for the Maori Land Court.  Where it is weak it can be changed.  Early retirements can and ought to be encouraged.  If we can get beyond the immediate lack of discipline and have that bolstered, then we can look at the very good work that has been done for example in the area of establishing Maori land trusts and incorporation's, and of supervising them and the Maori Trust Boards.

 

I also consider that the trusts incorporation and trust boards did a great job, not just in managing their assets, but in helping Maori communities generally.  In some districts, there is associated with nearly every marae, a particular land trust or incorporation that has been its shadowy benefactor.  We may observe then, that these bodies have not been simply into making money.  Associated with each of them was a wider community interest or social factor.  That is the essence of Maori structure that is worth preserving.

 

Today, the managers of those bodies are also likely to be the main source for expertise in managing tribal assets and handling tribal administration.  They have competence in understanding their wider trustee responsibilities as well.

 

But to get back to my point, I think that the Maori Land Courtsí role should be expanded. I promote this scenario.  The first is that facilitation mediation structures should be provided for the tribe to develop its own judicial capacity for the settlement of disputes.  However I believe that facilitation mediation only works if everyone knows that the matter could end up before a judicial body if agreement cannot be reached. I also think that facilitation mediation is best where the parties are roughly equally balanced.  It may not work for example, if a minority claims to have been prejudiced by runanga decisions.  The runanga itself may be too strong, or may have the money to be able to put the objectors down.  Also, if commercial managers or other managers of funds are alleged to have done wrong, justice may call not for mediation, but the application of strict law.

 

I suggest the persons with a proper complaint about tribal management or fund administration should have easy access to the Maori Land Court.  However, before the court could intervene, the court would need to be satisfied that the complaint is not simply mischievous, that facilitation mediation is either inappropriate or has been tried and not worked.  As matters stand, the cost to individuals of proceeding before the ordinary courts is exorbitant and all the power is with those who hold the money and the assets.  By legal processes in the ordinary courts, these are able to thwart legitimate complaints and to lock out entitled beneficiaries.

 

For this purpose the courts jurisdiction would need to be expanded.  In making decisions however, the court should be obliged to take into account the principles that the people themselves have settled upon in any written constitution, unless those principles are clearly contrary to justice.

 

Another option is legislation that enables runanga to elect the judge or judges of the Maori Land Court, who for any given period of years, may hear disputes arising from the administration of tribal assets and affairs.  This enables Maori to have a say on which judges appear to them to be satisfying Maori criteria.  It will begin the process of judicial accountability to Maori.  They should also have the power to appoint assessors to sit with the tribe.  Again this is a decision for the runanga of the people.  It is not a decision for the managers of the money.

 

 

The Development Of National Structures.

 

I consider there is a need for a national Maori organisation that is representative of tribal and urban organisations.

 

First I should say that I do not believe Maori should be too purist in accepting just the tribal ways.  If there are organisations that are representative of modern communities of interest, then these too should be provided for. I take as my guide that tradition does not reside in tribes alone, but in the maintenance of Maori values, and an important Maori value is to be inclusive of all the people.

 

If people relate best to new societies in which they live, then these should be recognized.  It should not be forgotten too that urban groups today are much more than a disparate collection of individuals.  They are more regularly a collection of families covering three generations, like most other families, and which have developed common perceptions, values and visions.

 

I think we should avoid the South African experience where urban and tribal native societies became locked into bitter competition.  The better course is to have all our people working together, or at least cooperatively, one supporting the other.

 

The test of allegiance is not actually based on residence in my view.  The better test is to ask of the individual, which group is likely to farewell you when you die? I do not accept that Maori have been incapable of achieving a national coherence in the past and therefore are unlikely to achieve it now.  Any lack of success for national Maori bodies has been due, in my view, to a lack of adequate resources to communicate adequately with their constituents.

 

I think a national Maori organisation is important provided we get the principles right.  It should be there to facilitate and not to govern.  It should not deny the district runanga the right of direct lobby but should recognise the principle of local autonomy.

 

A national Maori organisation needs its own funding base but should not be in a position where it is devolving money to the tribes.  The funding should be just that which is sufficient to manage its own operations.

 

But I think there are many areas where Maori should be developing common policy and vetting general policy that impacts on us.  In addition, in many situations the Crown should have to interface with this body and not be able to divide and rule.

 

A national body may be thought of as the ultimate federation of all Maori.  To that end it should be inclusive and respectful of all Maori groups, no matter how defined.  It should recognise other national Maori organisations including those of the churches. I will come back to this point if there is more time.

 

 

Determining Representation

 

How does one determine the appropriate body for a district?  How does one prevent fragmentation with new bodies arising and asserting a right of recognition?  The second question is more easily answered than the first. I support the former trend for district runanga or other organisations to be recognised by statute. I do no place much weight on the thought that this diminishes rangatiratanga.  The statute does not mean the Crown is establishing the body.  The statute means that the Crown is binding itself to recognise that body as the appropriate body for it to deal with regarding matters in the area.

 

What happens when there are several bodies in an area, they cannot agree, and the Crown cannot know which one it should provide for by statute?  That is a large question but at this stage I would probably support an arrangement along the following lines. I suggest that the National Maori Congress, NZ Maori Council, Maori Womenís Welfare League, and FOMA jointly approach government to fund a body to develop criteria for the recognition of appropriate bodies, for appropriately sized areas where there are disputes, to make inquiries with regard to particular areas, and to develop some temporary Maori judicial structure to determine what should be done. I have put these up as thoughts not as absolutes and goals, to generate discussion.  More succinctly, I reserve the right to change my mind.