The Govt’s task to reconcile two theories of justice

Press, 12 July 1988, Page 12

The Govt’s task to reconcile two theories of justice

Living in one country

ANDREW SHARP continues our series of personal reflections by different writers on race relations in New Zealand. The series of five articles began yesterday and will continue this week.

IN 1983 the Waitangi Tribunal made its first really important findings and recommendations on a case brought by the Atiawa people against the pollution of their fishing reefs.

The Muldoon ; Government sought to ignore some of the recommendations, thus rendering its dying days less comfortable than they already, were. Further findings and recommendations each year since then (two in 1987) have kept the tribunal at centre stage .in the politics of ethnicity, and of-re-gional and resource planning: Now in 1988 the clainis are piling up; there are perhaps 150 awaiting consideration. Government action on the recommendation of the tribunal has been neither swift nor decisive. The Kaituna River has been saved from piped sewage, but solutions in line with others of the tribunal’s recommendations have not been reached or are still being disputed. | There have indeed been the recent Muriwhenua findings: that under Article II of the Treaty the Maori were guaranteed the “exclusive possession of their fisheries,” that that guarantee had not been honoured, and that negotiations between the five northern tribes of the Muriwhenua confederation with the Crown should proceed in that knowledge. But the findings have been greeted less than enthusiastically. It has been a common enough feature of the tribunal’s cases that the claimants want some kind of restitution of lost rights; it has been equally common that certain interests have been aligned against the claims. But where in earlier cases there was considerable and majority public support on environmentalist grounds and on grounds that only ethereal Crown title to lands were at stake, this time the support is probably much less. Aligned against the claimants are the interests of the powerful Ministry of Agriculture and Fisheries; and there are the private property interests of commercial fishermen who had bought themselves individual transferable quotas in good faith. More ominously, not only for the tribes but from the point of view of peace

and good will, the proposition that Maori people should have “special” rights restored to them has obviously outraged the sense of justice, not only of redneck New Zealanders, but of moderate and liberal mehiand women. Though parliamentary debate on the issue on June 16 was studiously moderate and delicate, the Opposition is clearly having to rein in some of its members: Messrs John Banks, John Carter, Ross Meurant and Dr Lockwood Smith from the far north, and Sir Robert Muldoon, who doubtless remembers the Atiawa case. The northerners speak the language of race conflict, conflagration, bloodshed: Sir Robert’s view is that most Maoris themselves are now rejecting the idea of further claims to a discredited tribunal, the findings of which will generate dangerous and false hopes among the claimants. These M.P.s are probably wrong on all counts. Still, the reaction suggests that the tribunal, and ethnic relations, are in an awkward state. They are; but this is nothing new or worrying; and it is what the tribunal has been coping with since its effective existence began in 1977. The fact is that the Muriwhenua case contains in a nutshell the uncomfortable logic of the tribunal’s constant position; and that logic also applies to much of the ethnic politics in Aotearoa/New Zealand. Many Maori people labour under a sense of injustice at past wrongs

and demand reparation for those wrongs as theirs by right. They talk of their suffering and grief in a way which leaves their feelings crystal clear. They are not just saying what they say . for their own advantage. They believe it But on the other hand, the pakeha doubt the wrongs, or, accepting them, deny responsibility for the actions of past generations and governments; and in any case their ideal of justice is one in which the rights people have is independent of their colour, ethnicity or of who was here first. Some, of course, just say these things; but for many they are articles of faith, passionately believed in. Two incompatible theories of what justice demands are here at odds. What is more, if a decision either way were to be made about what justice really does demand, then from the point of view of those whose case was scorned, a terrible injustice would have been done.

In the logic of rights and justice, there is “Maori” and there is “pakeha” and there is actually no unjust solution possible. Not only are we not “one people”; we do not even share a view as to what rules of right we should live under.

The tribunal has always seen this dilemma posed by considerations of strict justice. The M.P.s debating the nature and existence of the tribunal since setting it up in 1975 have to a greater and lesser extent seen it, and the Muriwhenua parliamentary debates were typical. The awkwardness of the dual demands of different kinds of justice is a fact of New Zealand’s intellectual, legal, moral and emotional life. This is known to those, Maori and pakeha alike, who deal in such matters.

It is mostly plain men and women, again both Maori and

pakeha, who, immersed in their own ways of life, do not see it. They, together with ideologists on both sides, cannot see double. But we must see double. The answer in.such a situation, if it is peace and good will that is desired, is to pursue the politics of ambiguity; to seek consensus where it can be found, to negotiate differences around some broad and uncontroversial principle, to convert grievances about past wrongs into hopes for a better future, to moderate and limit but not (too often) to deny Maori demands for the restitution of their lost rights, to edu- ' cate the pakeha on the grounds of grievance so that some separate rights for the Maori will be accepted. The answer is also to insist that while we may not be “one people,” we are under one, sovereign, government. For obvious reasons, sovereignty is especially necessary where there is such fundamental disagreement: bicultural conceptions of justice if you like; a transcultural imposition of law where conceptions compete. This has been the jurisprudence of the tribunal, and its recommendations have almost invariably been that negotiation and accommodation should occur. On the one hand it has found plenty of breaches of the Treaty by way of the application of a tendentious jurisprudence such that the Maori are said to have been “guaranteed” their language, their continued existence in tribes, European-style ownership of some things and Maori-style rangitiratanga over others.

Not all, not even much, of this can have occurred at all to the original signatories; but in finding in these directions the tribunal has responded to (and partly constructed) a contempor>ary Maori interpretation of the

Treaty and of justice for them. On the other hand the tribunal has developed a jurisprudence of partnership and negotiation with an eye to the future, the jurisprudence so evidently adopted in the recent Court of Appeal case on State Owned Enterprises, The New Zealand Maori Council v. The Attorney-General (1987). But how, a claimant might ask (and one hears them asking) can you negotiate away just claims? So, like the Court of Appeal and the M.P.s the tribunal has always insisted on the sovereignty of the Crown. What else, what better, could it do?

We cannot escape the way we are and the way we think. It is now up to the Government to continue the perfectly justified process of negotiating what is, on both the competing theories of justice, often not negotiable.

It is the Government’s responsibility to hesitate, stumble and fudge on those matters while it deals more expeditiously with the more tractable problems of social inequality that need addressing.

ANDREW SHARP is a senior lecturer in political studies at the University of Auckland. He formerly lectured in political science at the University of Canterbury.