Maori Public Policy: Needs, Rights, and the Politics of Indigeneity

Introduction

In January 2004 the Leader of the Opposition National Party, Don Brash, responded to a growing public resistance to the Maori rights based politics of indigeneity. His Nationhood speech positioned Maori as greedy and claiming special rights on the basis of a birthright to the 'upper hand'. He argued that public policy should instead be crafted on the basis of 'need' because Maori have no 'rights' above those of citizenship. Citizenship, he argued, requires 'one law for all (Brash 2004)'. The Maori Party co-leader Tariana Turia, argues in contrast, that:

We will claim our indigeneity and we will speak of it, regardless of whether people want to see us as 'one people (Turia 2006)'.

Brash was responding to a growing political backlash against perceived provision of remedial rights to Maori, which were allegedly unjust and a 'racial provilege'. The argument was an oversimplification of complicated policy initiatives intended to reduce social and economic disparity between Maori and non-Maori. While accepting that such disparities are the proper concern of public policy, Brash did not see them in the context of wider Maori cultural imperatives and aspirations. In this view Maori were poor people with 'needs' not indigenous peoples with 'rights'.

There is a shared human need for material satisfaction, but people can have further legitimate wants, which are legitimate if they have a basis in 'right'. Need, can only be judged in cultural context, which means that the cultural norms of another culture cannot be the benchmark for the progress of one's own, as Durie explains:

Maori progress, whether in commerce, education, or science, could not be accomplished without taking cognisance of Maori values and the realities of modern Maori experience. In other words, Maori development was not solely about making economic progress or reducing state obligations towards Maori; it was also about being able to retain a Maori identity and formulate development according to Maori aspirations (Durie 2003, 304).

Like Indigenous Australians and Native Canadians, Maori pursue a politics of indigeneity which means that they seek recognition of collective rights in the nation-state not on the basis of need or disadvantage, nor even on the grounds of compensation, but on the basis of 'ancestral occupation (Fleras 2000, 129)'.

The Nationhood speech nevertheless received widespread populist attention, and in response the National Party's public opinion poll ratings rose markedly to erode the Labour/Progressive minority coalition government's long-standing and substantial lead. The Government was panicked and appointed the first ever Co-ordinating Minister: Race Relations. The minister was required to scrutinise public expenditure to satisfy a suspicious electorate that 'need' not 'race' was the basis of public spending. The appointment signalled a shift away from a long-standing bipartisan acceptance of incremental steps towards Maori self-determination and raised questions about the nature of Maori belonging to the polity. The ensuing debate was a debate about rights, needs, citizenship and democracy. Self-determination was challenged by the re-emergence of assimilation on to the public agenda, as a subtle though not explicit National Party policy objective.

The politics of indigeneity does not disregard the rights of others, nor imply political isolation. Rather, it rejects domination and subjugation as the foundation of political order. It rejects one culture positioning itself as the 'normal' basis for the conduct of public affairs. It implies political participation not just as individuals but as peoples. It does not however create a 'crisis of legitimacy' for the nation state as Kelsey suggests. Acceptance of the Treaty of Waitangi makes it impossible for Maori to reject the legitimacy of the New Zealand state.

Indigeneity and Self-determination

Self-determination became an on-going historical force with the first Crown breaches of the Treaty of Waitangi in 1840. It is however a product of much older universal principles, including the individual liberty at the centre of liberal democratic political theory. It is never likely to be far from the public agenda as the plurality of views both for and against the idea compete for greatest influence among policy elites. Selfdetermination is:

An idée force of powerful magnitude, a philosophical stance, a moral value, a social movement, a potent ideology, that may also be expressed, in one of its many guises, as a legal right in international law (Stavenhagen 1996, 2). Mick Dodson's account of the origins of Indigenous Australian self-determination holds equally well in New Zealand.

Time and again indigenous peoples expressed the view that the right to selfdetermination is the pillar on which all other rights rest. It is of such profound nature that the integrity of all other rights depends on its observance. We hold that it is a right that has operated since time immemorial amongst our people, but it is the right that is at the centre of the abuses we have suffered in the face of invasion and colonisation. The dominant theme of our lives since colonisation has been that we have been deprived of the very basic right to determine our future, to choose how we would live, to follow our own laws. When you understand that, you understand why the right to self-determination is at the heart of our aspirations (Dodson 1994, 44).

Self-determination challenges the systemic and ideological foundation of postcolonial notions of sovereignty and government. It seeks an equality that can only be achieved by the recognition of group rights.

The politics of indigeneity refers to the right to be different in some senses and the same in others -the opportunity to live in the modern world while at the same time preserving one's ancient cultural heritage (Fleras 2000, 220). It assumes a transformative function allowing indigenous peoples to think about the terms of their 'belonging' to a wider polity, but also about their political status as autonomous peoples, belonging not just to a national jurisdiction, but to their own communities with inherent independent political status. It also provides membership of an international indigenous community that affords intellectual opportunities unconstrained by the often antagonistic political and policy climates of their own nation-states.

While Maori may see themselves 'as members of fundamentally autonomous political communities' this is an adjunct, not an alternative to state citizenship (Maaka and Fleras 2005, 43). Alongside citizenship of the state, iwi 'citizenship' gives rise to certain hereditary rights which have nothing to do with populist rhetoric about indigeneity establishing a right to jump the hospital queue, but are concerned with being able to live according to preferred cultural norms. Indigeneity is concerned with the right and opportunity to live as Maori: the right of access to language and culture, the right to preserve and develop resources as a community, not just as an individual. Indigeneity goes beyond citizenship and has implications for self-determination, development and progress. Indigeneity relies on public recognition of the right to exist as a distinct culture with a language that is properly and beneficially preserved and developed. Recognition of the legitimacy and desirability of cultural preferences not being confined to the marae as 1840 museum relics is also important. Citizenship is still however a 'site of struggle (Maaka and Fleras 2005, 43)' for Maori, as it is used by critics as a theoretical justification for denying autonomy and for illegitimising indigeneity.

Further, indigeneity is concerned with more than just 'cultural space and social equity (Maaka and Fleras 2000, 93). It extends to language, political participation and citizenship. Rights of indigeneity predate those of citizenship and express a desire for greater Maori control over their lives, culture and resources. Citizenship is a basis for defining common rights and obligations, which are clarified in specific context rather than displaced by indigenous rights. Maori therefore ought to engage with society on the basis of rights rather than on the basis of the state choosing to accommodate certain cultural preferences. Recognising difference does not transcend the constraints of formal citizen status (Fleras 2000, 220).

Self-determination embodies autonomy and freedom from state interference. It is a right that international law recognises as available to all peoples. It is a right which peoples 'need, for their own good, and that of their fellow citizens, the power to fashion their own lives and find enjoyment in love, work and creative activities (Sharp 2004)'.

In New Zealand, many of the institutional requirements of indigenous selfdetermination are in place. Maori is an official language and can be used in any public context. Maori are guaranteed representation in Parliament. There are numerous Maori educational facilities and health providers and many iwi have obtained or are negotiating recompense for land and other resource alienation. Although these rights of indigeneity are recognized, they are not secure, and questioning their legitimacy was the purpose of the Nationhood speech. The speech's underlying message was that that Maori are a competitor whose claims conflict with national unity, equal citizenship and democracy. They are a problem to be solved The message struck resonance with an electorate concerned by perceptions of an overemphasis on the Treaty of Waitangi as a moral and legal guide for public policy making. More importantly it struck resonance with an electorate convinced by a fundamentally dishonest interpretation of the judgement of the Court of Appeal in Ngati Apa v Attorney-General ([2003] 3 NZLR 643) which maintained that the judgement would deny all non-Maori New Zealanders access to beaches for recreational and commercial purposes. Given the effect of the ensuing Foreshore and Seabed Act 2004 the assertion of 'one law for all' is odd because:

when one looks at the history of struggle by indigenous people against racial discrimination, it is ironic that a discourse of equality should now be used to lend moral force to the claims of non-indigenous people... (Jonas and Donaldson 2001, 16).

'One law for all' is reminiscent of the equality discourse that was used to justify paying Maori a lesser pension when old age pensions were introduced in the late 1930s. It was argued that an equal pension would have been unfair because Maori lived predominantly in traditional whanau and hapu which shared resources among members giving Maori an unfair advantage over pakeha who apparently held to a more individualistic form of social arrangement. But the argument was explicated in public good terms. As Maori were not yet fully assimilated and contributing maximally to the economy, they should not reap the full fruits of the pakeha-based welfare state. In fact, to do so while receiving tribal support would, it was argued, privilege them over pakeha beneficiaries. The implication seemed to be that full 'equality' was a long-term goal whose achievement depended on full assimilation (Hill 2004, 169).

If Maori were not contributing to their capacity to the economy, a system genuinely concerned with equity might have taken account of the reasons for that. It might also have taken account of the view that the 'fruits of the pakeha-based welfare state' arose in significant part from the alienation of Maori land. The Canadian Nisga'a agreement recognises self-determination as a right to be 'different and apart'. In New Zealand self-determination might perhaps combine the right to be 'different and apart' with the right to be 'different and included' in the shared life of the modern nation state. The question that the Nationhood speech raised was can difference and inclusion occur simultaneously? Is inclusivity a narrow concept requiring uniform membership or can it accommodate difference? Brash's apparent view is that unity and inclusivity are threatened by too much difference. The Government's view appears to be that unity and inclusivity are enhanced by allowing Maori to be 'different and apart' provided that they are not too different and too far apart. The test of what constitutes too much difference and too much separation is as much a crass political judgment involving balancing the threat of alienating Maori electoral support against the alienation of non-Maori support, as it is a matter of moral principle. The net electoral rewards for attending to Maori self-determination are almost certainly negative, which means that Maori can never hold the 'upper hand' as Brash suggests.

The politics of indigeneity is a claim for inclusion, not exclusion and by its 'redressing colonial injustices that undermine cohesiveness' its potential is unifying. It is not concerned with divisive racial policy.

The politicisation of indigeneity draws the Crown into the most contentious of all relations; namely, a politicised minefield involving a shifting and openly contested relationship between relatively autonomous and independency sourced political communities, with each claiming intrinsic authority over respective jurisdiction related to rights, resources and recognition. Not surprisingly the prospect of reformulating foundational principles for 'sharing the land' cannot possibly proceed without challenging the underlying constitutional order (Maaka and Fleras 2005, 255).

The order that is challenged raises questions about where power lies and how it is shared in the democratic nation state. Maori do not accept that power lies solely with the Crown, which in practice means the government of the day governing primarily from a non-Maori perspective with non-Maori interests having greater weight in the event of conflict.

Commonality, Difference and the Liberal State

The integrity of the state requires a certain commonality among citizens. In New Zealand those commonalities are sufficiently strong to explain the absence of a secessionist interpretation of self-determination. The most important commonality among peoples is however a shared humanity and from that shared humanity arises a personal sovereign expressed in association with one's community, and from which an identity is crafted. It is therefore inadequate for liberals to claim a politics of inclusion on the basis that the right to vote is not denied on the basis of race, gender, religion or social class. Inclusion is illusionary in the event of government without regard to these differences. The 'one law for all' protagonist therefore excludes Maori from the polity. Indeed the Nationhood speech expressed a view that the liberal democratic state's primary concern is with individuals and that it properly struggles with notions of collectivety. 'One law for all' removes liberal democracy's ability to account for difference. Yet participation in the democratic process must not be in form alone because self-determination entitles a people to choose its political allegiance, to influence the political order under which it lives, and to preserve its ethnic, historical, cultural or territorial identity (Daes, 1996, 48).

Overstating commonalities also removes liberal democracy's ability to recognise difference and privileges assimilation, which is the incorporation of indigenous individuals into an homogenous community which conducts its affairs solely in accord with one set of social, political and cultural mores. Those of the minority are displaced by those of the majority.

The well functioning liberal state requires a body politic whose members are provided equally with opportunities for political and social participation because: 'Power is always exercised, and political outcomes are always determined, in the context of the relative capabilities of parties (Held 1995, 170)'. The politics of indigeneity therefore encompasses strategies of resistance 'guided by the anticipation of a political order which does not arbitrarily shape and constrain choices (Held 1995, 70-71)'. It maintains that the stability of the democratic state is enhanced by minimising disparity, not by marginalising any particular group from the body politic.

A parallel to Brash's unease with difference is a particular feature of the indigenous policy of John Howard, Liberal Prime Minister of Australia. For Howard citizenship in a pluralist democracy is sufficient to guarantee the legitimate rights of Indigenous Australians. As his Future Directions election theme song in 1988 explained, 'Son, you're Australian, that's enough for anyone to be'. The validity of any subnational identity was dismissed because: 'Family and nation are enough for anyone (Brett, 2005, 25)'. Further, Howard's electoral success is attributable to among other things his 'assimilationist nationalism (Brett, 2005, 25)', which emphasises sameness as the basis of equality. Colonial relationships are maintained 'by conferring the mainstream with the pre-emptive right to define what counts as difference and what differences count (Maaka and Fleras 2005, 278-

Liberalism must recognise difference if it is to recognise freedom. Freedom is not acultural. It is deeply rooted and inseparable from culture. If Maori cannot choose to live as Maori then they cannot have freedom. Equality is not in itself going to meet indigenous aspiration: 'the promotion of mathematical equality in unequal context is tantamount to freezing the status quo (Maaka and Fleras 2005, 243)'. Equality is also in itself insufficient because what Maori seek is not rights beyond those of citizenship but the ability to express and receive those rights in preferred cultural form and by means recognizant of difference. There is a resulting ideological tension for political parties which on the one hand place liberal freedom at the core of their philosophical foundation, but on the other, harbour a social conservatism which struggles to see the point of difference.

Further, it is from the very idea of self-determination that democracy 'derives its power and significance' because democracy holds that members of the polity should be able to make free choices and that it is the ability to freely participate that legitimises state policy choices (Held 1995, 144). Tully's conception of liberal democracy is inherently non-assimilationist, and holds that in addition to democracy affording all citizens free and equal rights to participate in the government of the nation-state, it affords them the right to live their private lives in accordance with their own choices and responsibilities (Tully 1999, 437).

If however democracy is intended to protect citizens against the misuse of political power it requires a mechanism for the protection of minority interests over simple unbridled majoritarian rule. Democracy's broad potential therefore requires acceptance that equality is not uniformity, and that it is legitimate for equal rights to be expressed with regard to cultural context. While voting in general elections is the single most significant characteristic of equal political participation, the right to vote does not in itself guarantee political equality. The assimilationist conception of political community with its ideal of a mono-cultural polity obstructs political equality because it does not admit the legitimacy of culturally framed Maori political participation.

Durie argues that self-determination must be practical and consistent with the hopes and aspirations of contemporary Maori (Durie 1998, 4) in their diversity and in their commonalities. Self-determination arises from and guides political and legal theory and has 'three important dimensions'. Firstly, it is concerned with 'economic standing, social well-being, and cultural identity' for both individuals and communities. Secondly, individual and collective 'power and control' for better self-management and decision making over natural resources, including Maori land, the active promotion of good health, good education and Maori language usage. Thirdly, cultural change because: 'Maori selfdetermination is not about living in the past Durie 1998, 4). Self-determination must not be a static concept. It must evolve to meet changing circumstances and objectives.

Self-determination has not been and should not be a stagnant phenomenon. Further evolution is likely and it must be admitted that, not surprisingly, the outcome is uncertain. States as the supreme law-makers will continue to preserve their interests in ongoing and forthcoming legislative debates, but that is not necessarily a straitjacket... (Alfredsson 1996, 79).

Maori perceive development as development as Maori not 'advancement' by assimilation. The stability, immovability and irreversibility of the liberal state 'vis-a-vis any direct confrontation by the colonised population (Tully 2000, 37)' establishes however a natural tendency towards assimilation which can only be resisted by conscious effort. The resistant politics of indigeneity leaves liberals such as Brash 'perplexed' and 'baffled' (Maaka and Fleras 2005, 29), as they are unable to rationalise a politics based on rights not need. They very narrowly understand 'need' as an individual entitlement to state welfare assistance when unable to work. The welfare payments characteristic of policies of need may be materially beneficial to some in the short-term, but policy thinking becomes focused on a 'Maori problem' which needs to be fixed. Questions about the indigenous position vis-a-vis the wider polity can not be considered in this context and it becomes all too easy to construct the 'problem' to position Maori as a competitor to be jousted (Maaka and Fleras 2000, 197). The Foreshore and Seabed Act 2004 was an example. It was a blunt assertion of colonial dominance by the Crown, raising questions about indigenous authority vis-à-vis the Crown's.

The politics of indigeneity is not however a guarantee of justice, which must be realised through a political process. But: 'Politics does not thrive (like justice) where things are settled and where rights and duties are clearly understood (Sharp, 1997, 163)', and self-determination is not a need which can be delivered and measured; it is a right subject to a political process which continually re-balances, evaluates and seeks new and different power relationships within the nation-state. Although constrained by the shifting boundaries of political willingness and possibility, indigeneity assumes non-colonial relationships between Maori and the nation-state. Indeed it emerged to contest colonial relationships as the limiting framework by which Maori political participation is constructed and from which subjugated political status is the only possible outcome.

Instead Maori pursue the autonomy of economic and cultural independence, which is the self-responsibility of self-respecting peoples. Autonomy is the basis of interaction with the wider world by ways and means defined in one's own cultural frame of reference. Autonomy can not be granted as an act of benevolence by the state because it belongs inherently to indigenous peoples in their own sphere. It is a contrast with an assimilationist perspective which does not admit that Maori culture is a legitimate or beneficial starting point for thinking about one's terms of belonging to the nation-state.

Innovative patterns of belonging are integral to constructive engagement. Indigenous proposals for belonging to society are anchored in primary affiliation with the ethnicity or tribe rather than as individual citizens, thus implying that peoples can belong in different ways to society without necessarily rejecting a sense of citizenship or loyalty to the whole (Fleras 2000, 133).

Assimilation is pursued through a process of socialisation that is primarily the function of state schooling. Bishop's study which shows the power of the street level bureaucrat in the school system is but one example of both the coercive and positive transformative powers of the state (Bishop et al. 2003). A Maori demand that positive social transformation replace coercion as an objective of schooling is perhaps the single most graphic expression of indigeneity.

Indigenous peoples do not always see their destinies locked into the wisdom of the state, especially if their sovereignty has been appropriated by colonising powers and their experiences of state control have been marred by dispossession and deculturation (Durie 2005, 163).

Maori do not accept that the Crown is the font of all knowledge regarding the schooling of Maori and this has been the site of greatest contestation of authority between assimilationist and self-determining bodies of thought. Schooling is simultaneously a tool of coercion by the state and resistance by the indigenous, as the state seeks to control, and as Maori seek education as a path to independence. Maori need and have a right to educational opportunity that is not diminished, relative to others, by race. Parallel arguments can be made with respect to health care, housing and labour market participation for example. Maori public policy therefore creates a tension for liberals. The balancing of liberal values of choice with a public perception of financial support for schools and health providers for example based on recognition of indigeneity creates a political problem. The broadening of the focus of Treaty of Waitangi policy to include implications of indigeneity, rather than just material disadvantage, assisted the emergence of a fear that Maori might receive material privilege on the basis of race rather than need, which offends principles of equality and equal individual rights (Durie 2003, 264).

The rights based politics of indigeneity challenges the foundations of the settler political order and has developed into an 'international social movement [which] is highly political in advancing the politics of self-determination, but also incorporates other dimensions such as the revitalisation of culture... (Maaka and Fleras 2005, 167).' It counters 'grudging state recognition' of indigeneity (Maaka and Fleras 2005, 167). It recognises a Maori right to have needs, even when they are the same as the needs of others, addressed in culturally preferred context. It is the inability of the 'one law for all' rhetoric to accept the legitimacy of difference that makes it antithetical to indigenous aspirations. Difference is however important for indigenous peoples because historically its antithesis, assimilation, has been the Crown's primary tool of coercion.

'Needs', 'Rights' and Economic Transformation

Finding a balance between Crown and indigenous rights and expectations is more a process of continual re-balancing of relational power rather than seeking agreement on points of moral principle. The Crown has a monopoly on neither, but it, not Maori holds the 'upper hand' in the politics of influence. Certainly the Crown does not always use its 'upper hand' against the Maori interest, but when it creates space for Maori voice and authority it rarely does so with solely the Maori interest in mind. Where indigenous aspirations are recognised by the state, or in populist discourse, they are often restricted to economic objectives required for national benefit rather than for Maori benefit per se. The Maori population is sufficiently large to make the well-being of both Maori and non-Maori interdependent (McLeod, 2005).

By 2051 the Maori population is projected to account for 22% of the national population, with perhaps a further 100,000 Maori living overseas (Durie 2005). New Zealand can not sustain an underclass of that size, it 'needs' to allow an economic and social transformation of Maori society to foster national cohesion and prosperity. There is therefore a conflict for political parties. Maori development suits the national interest but preferred Maori paths to development require a particular recognition which populist politics likes to interpret as 'separatist' and racial privilege. Yet at 15% of the national population Maori inevitably carry greater collective influence than native Australians and Canadians for example, and are not so dependent on moral argument alone to have their aspirations established on the national political agenda. Pragmatic political considerations are however supported by further arguments in justice that individual freedom depends on a fuller citizenship than that enjoyed by a poorly educated people with relatively low incomes, high unemployment levels, high levels of state dependency and high levels of imprisonment and ill-health. Notwithstanding the rights inherent to a reparative justice discourse the nation 'needs' Maori to enhance their economic productivity.

Similarly, in Canada, Fleras argues that the recognition of Aboriginal belonging in Aboriginal terms emerged over the last twenty years because the cost of 'excluding Aboriginal peoples from the national agenda proved unacceptably high in social, political, and economic terms (Fleras 2000, 134)'. To that end, Aboriginal leaders are pursuing a national political agenda that focuses on wrestling jurisdiction away from Federal and provincial authorities while reaffirming Aboriginal peoples as fundamentally autonomous political communities, both sovereign in their own right yet sharing in the sovereignty of society by way of multiple yet overlapping jurisdictions (Fleras 2000, 109).

At a state sponsored Maori development conference in 2005 -Hui Taumata 2005 -Maori set a development agenda which was on the one hand consistent with state objectives to raise the level and quality of Maori economic participation, but on the other drew on the politics of indigeneity as both a path to progress and a reason for progress. Independence and autonomy were also seen as key to indigenous aspiration as Maori solutions were sought for Maori purposes.

Maori also see the fusion of economic and cultural imperatives as a distinguishing characteristic of indigenous political aspiration.

Among the long-term objectives of Hui Taumata 2005 is to develop strategies so that Maori 'might live as Maori and as citizens of the world (Hui Taumata 2005, 12)'. Hui participants argued a need to 1. create a new dedication to long-term planning for future development in a global framework 2. shift the focus from improving access [to tertiary education] to high achievement and quality of outcomes 3. seize opportunities for collaboration and new partnerships to drive economic advancement 4. increase investment activity in Maori development and business as significant contributors to the New Zealand economy 5. emphasise the vital importance of urgently increasing Maori human capital to raise Maori average incomes and to drive economic growth 6. create an intensive focus on growing enterprise and entrepreneurial skillsamongst Maori 7. capitalise on the exploration of Maori identity, both as a point of difference… and an inexhaustible source of innovation and creativity 8. reinforce the importance of excellent leadership and governance that will share good practice and work cooperatively (Hui Taumata 2005, 12)'.

Hui Taumata 2005 clearly preferred developing a Maori economic base to engage with the national and international economies in its own right over assimilation. Strengthening its economic base is a path to Maori independence from the state, and demonstrates that it is too simple to understand Maori policy in terms of welfare entitlements to those who 'need' them. If the rights of citizenship are concerned only with the right to a state benefit if one is unable to work there is not a foundation for personal or familial sovereignty.

Conclusion

Since 2004 Maori policy debate has been narrowly and simplistically constructed around the proposition that Maori who are in 'need' are as entitled as anybody to welfare assistance but they do not have a 'birthright to the upper hand'. In this debate sameness is privileged over difference and the fuller implications of a rights based politics of indigeneity overshadowed. But at the same time Maori see certain rights, unrelated to welfare entitlement, as the basis of a social and economic transformation which New

Zealand 'needs' them to achieve in the interests of national economic prosperity and social cohesion. The politics of indigeneity provides a way of thinking about Maori policy which transcends the narrow and supposedly acultural notion that addressing 'need' is all that is required to include Maori fairly in the national polity. It establishes that Maori ought to engage with wider society in their own terms for their own purposes. It demonstrates that Maori political aspirations cannot be reduced to populist slogans about Maori claiming a 'birthright to the upper hand'.