Aboriginal issues and New Zealand’s indigenous experience

Jun 25, 2020

New Zealand is often held out as an example of multi-culturalism and race relations that Australia might emulate. This has been so particularly since publication of the Uluru Statement (2017).

In the Uluru Statement indigenous spokespeople sought: a Voice to be enshrined in Australias Constitution; a Commission legislated to supervise a process of agreement-making with Australian governments; and the Commission to oversee truth-telling about Australias history and colonisation.

Leaving the third ambit aside as something so vague as to endanger the very processes of uncovering and educating about what remains of the many cultures that were in Australia before European settlement, I wonder how much of New Zealands experience could inform Australia on matters relating to the first two ambits.

New Zealand has taken a more inclusive approach to indigenous issues than some would like for Australia. Reasons for this include the fact that people with Māori backgrounds form large and fairly homogeneous minorities in much of New Zealand and majorities in a few communities and regions. And New Zealand has substantial minorities with Pasifika or Asian backgrounds, too.

Nearly twenty percent of New Zealanders claimed Māori descent in New Zealands 2018 Census, though only half of these identified as being of Māori or mixed-Māori ethnicities. The number of New Zealanders who speak Māori was smaller but still three times the number of Australians who claimed in its 2016 Census to speak any of Australias disparate indigenous languages.

The greater ethnic homogeneity among Māori as compared with Australias indigenous cultures/linguistic groups, despite more than two centuries of intermarriage, is suggested by Census data which show a greater tendency for Māori than Australian indigenous people to marry within their ethnic affiliations.

But even more important for New Zealands approach to indigenous issues has been its history of constitutional development.

If we start with the constitution of the two countries, one (Australia) was created by an Act of the United Kingdom Parliament (the Commonwealth of Australia Constitution Act 1900) and the other (New Zealand) by an unusual treaty (the Treaty of Waitangi 1840) which by their representatives was between the British Crown and independent Māori tribes acting in concert.

It is argued by some that Australia needs such a treaty or treaties. Quite apart from questions as to whether such a treaty could be effected retrospectively in Australia (where many cultural/linguistic groups now exist in name only), it seems doubtful that New Zealands Tiriti o Waitangi has any more relevance to Australia than nineteenth century treaties made in other countries between indigenous people and colonial administrations.

New Zealands Treaty consists of no more than a Preamble and three clauses written in English and Māori by which the Chiefs of [most of] the Tribes of New Zealand ceded sovereignty to the British Crown in return for promises of protection and guarantees of indigenous rights. Ratified by the British Government, it was acknowledged as New Zealands founding document yet otherwise largely ignored, leading to widespread injustices and three decades of warfare.

In fact, the Treaty did not get Parliamentary recognition until New Zealands Treaty of Waitangi Act 1975, and it was really the Treaty of Waitangi Tribunal established under that Act that has made possible resolution of many of the injustices. It is the Tribunal rather than the Treaty which might offer a model for settling indigenous grievances in Australia more comprehensively than is possible by Australias National Native Title Tribunal established under the Native Title Act 1993.

It is also argued in Australia that indigenous rights should be enshrined in Australias Constitution, meaning the Constitution originally enacted in London in 1900 and patriated to Australia in 1986. Since proposals for amendments in 2012 by an expert panel on Constitutional recognition of Indigenous Australians there has been active debate about amending this Constitution, such as to remove race-focussed provisions and to give a voice in it for indigenous people.

Contrary to popular belief, New Zealand has a written Constitution. As In Australia, this originated in United Kingdom legislation, the New Zealand Constitution Act 1852. This Act was in force until 1986 when New Zealands Constitution also was patriated and when theNew Zealand Parliament passed a new Constitution Act. Unlike the earlier one, the Constitution in New Zealands Constitution Act 1986 conspicuously makes no mention of anything to do with race or ethnicity.

Unlike Australias, New Zealands Constitution is brief, leaving more of the detail required to give it effect to Parliamentary legislation (such as the later Bill of Rights Act 1990 and electoral legislation). Also, New Zealands Parliament has been able since 1857 to amend both the Constitution and constitutional legislation more readily than Australias, enabling it to be more flexible in addressing issues (even to the extent of abolishing its provinces, in 1876).

Neither of New Zealands 1852 and 1986 Constitutions provided for a voice for Māori but its Parliament has legislated notably for Māori seats in Parliament (originally in the Māori Representation Act 1867). Interestingly, barely half of those eligible today to enrol in Maori electorates (New Zealanders of Māori or mixed-Māori descent), choose to do so.

Other examples of New Zealand legislation giving Māori a voice include for a Māori Council which advises Parliament (Māori Social and Economic Advancement Act 1945 and Māori Welfare Act 1962) and a bookshelf of legislation relating to Māori rights since its first Native Land Acts of 1862 and 1865, the latter of which established a Māori Land Court.

Given the difficulties of amending Australias nineteenth century Constitution whenever is it is mistaken or irrelevant, I find it hard to see how an indigenous voice might be incorporated in it beyond references in a Preamble to the historical reality that the Commonwealth of Australia was formed out of Colonies that existed prior to 1900 and the descendants of indigenous people who occupied the land before European settlement.

As I see it, the legislative pathway followed by New Zealand has been more flexible than Australias and is to be preferred to the more legalistic and inflexible pathways implied in the Treaties and the Constitutional changes sought by some in Australia. However, as in Australia, some in New Zealand remain dissatisfied with the outcomes there, demanding self-determination.

New Zealand, like Australia, has ratified the United Nations Declaration on the Rights of Indigenous Peoples, in which clauses 3 to 5 propose rights to self-determination and autonomy for indigenous peoples. However, like Australia with few indigenous people living in communities where they are ethnically dominant, it is hard to see how separate development can be possible there.

Perhaps it is in New Zealands long tradition of inclusive legislation rather than Treaties and Constitutional change that Australia should look for solutions for the grievances of its indigenous peoples?

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