Moana Jackson
Director of Nga Kaiwhakamarama I Nga Ture (the Maori Legal Service)

I will try and take some of the ideas and themes from this morning and flesh them out, not so much in terms of Looking In, Looking Out, Looking Forward, but rather in terms of looking back in order that we can look forward. I will focus my korero on one of the fundamental issues that link our past and our future in this land and that is the notion of constitutional change.

One of the themes I want to pick up on first is the uniqueness of being Maori and the uniqueness that gives to this land. This is not necessarily in the sense of it being a marketing opportunity, as some speakers have said, because marketing and 'commodifying' being Maori poses serious issues for our people. Rather, it is important that everyone who lives in this land has some understanding of the cultural realities and diversities of what it is to be Maori.

I was pleased and interested when Robyn Bargh began her presentation this morning by asking us to close our eyes and visualise a Maori woman. Often the imaging that we are presented with of what it is to be Maori is shaped by views that are sourced in the myths of history. We are either the primitive savage or the Maori version of Pocahontas collapsing into the arms of a pakeha hero, or, if you watched the recent television series Greenstone, a Maori Pocahontas collapsing into the arms of two pakeha heroes.

In more recent times we have an advertising imagery of what it is to be Maori expressed by Saatchi and Saatchi. They think it is appropriate to sell the America's Cup regatta by using a Maori translation of an ancient English hymn and by having a Telstra advertisement on television that encourages us to reject the past and grasp the future. One of the subliminal images that they flash on the screen as they tell us to reject the past is the face of one of my ancestors. There is also the televisual image in which the only mainstream and prime time programme Maori presenters seem to be able to present is Crime Watch or its progeny.

Rather, there are many images of what it is to be Maori, shaped by Maori realities, shaped by Maori history, and in the last 159 years shaped often most devastatingly by what I call the culture of colonisation, which Jamie Belich referred to this morning. Part of that imagery confines us to a subordinate place in this land. That is the nature of colonisation. It has been mythed, however, or what I call 'Hollywooded' into something else. This is where the uniqueness of our race relations becomes the cause of pride, rather than deceit, where the taking of our land and the development of something called a treaty settlement process becomes a full and final removal or putting away of the grievances of colonisation, rather than the first tentative step along reclaiming what colonisation has done.

I will give you one little example of the differences that are often remarked upon and may not seem important. This is what I experienced during the lunch break when I went upstairs to see the Te Aupouri Exhibition. There were a lot of Maori people there, many from the north. (One of my ancestors they claim was born in the north.) I knew many of them and we stopped to greet each other. Many Maori we simply recognise as being mokopuna of iwi. So we did something that I find is uniquely Maori because we greeted each other without a word, and simply went like that (gesture of raised eyebrows). By the time I left the exhibition I had a sore neck and sore eyebrows from doing that. But I had established a tie with people for whom the bonds of whakapapa in the end, in spite of the apparent conflicts that Maori society have, are much deeper than any divisions.

So there are a range of Maori uniquenesses. The most fundamental of those uniquenesses for me is the right, the ability and the power that we exercised in this land prior to 1840 to govern ourselves. Whether that is now defined as tino rangatiratanga, as sovereignty, as self-determination, as governance does not matter within the constructs of our uniqueness of our culture. We made basic and fundamental decisions about how we should live our lives, how we should organise our society, what values we felt were important to ensure the wellbeing and contentment of our people. Like all human societies it was not perfect. It was shaped and often influenced by human imperfection, but it was nevertheless an unquestioned right that in the end no one could make a better decision for the welfare of say Ngati Porou or Tuhoi than the people of Ngati Porou or Tuhoi. The notion that someone else could assume that right was in the normal course of things foreign to the cultural uniqueness of our people.

Unfortunately, what has happened since 1840 with the redefining of our uniqueness and the Hollywooding of the culture of colonisation is that that uniqueness has been redefined, submerged, sometimes even completely ignored. In the last ten years there has been a move to restore and rebalance some of the property injustices created in the course of colonisation. But there has been to date little willingness to address the much more difficult and tricky problem of restoring the political and constitutional rights that our people exercised prior to 1840, and which many of our people believe that the Treaty of Waitangi simply reaffirmed.

I realise that in half an hour I will not have time to explore what my Professor of Law at Victoria University called 'the delicate interstices of constitutional law'. That reminded me of hints that I was given at universities about how I could distil the essence of a complex argument. When I went to university I studied Law. I therefore don't think I learned a great deal, but in the non-Law subjects that I studied one of my favourites was English. I learnt a lot from studying English. In my first year we studied two plays. They were King Lear by William Shakespeare, about a disfunctional British Royal family whose father stumbled round the moors abusing his daughters, and Edward II by Christopher Marlowe, about another disfunctional British Royal family where the king ended his life in a rather grizzly fashion because of an affair with his pageboy. What those two plays taught me was that nothing much changes in the British constitutional system. I also learned in English that you can begin a speech on the most complex of topics by having a title or a scenario from which you draw out threads that distil the main points you wish to make.

As I watched and listened to the various speakers this morning I was impressed by all the technology that was used - as I have been in recent conferences that I have attended. What I decided to do rather than use technology was to investigate whether it would be possible to make a film that I could show here today. So I rang my friend Steven Spielberg in Hollywood and got some funding. Because it was to be a film about constitutional change I thought I should begin casting the movie at Parliament and I was fascinated by the interest. It seemed that everyone in Parliament wanted a part, even when I explained that I was going to call my film Even Colonisers Sing the Blues and that I would cast the politicians as the colonisers. They either didn't understand what I was saying or nevertheless flocked to audition anyway. I found that an interesting experience as I looked through their various acting CVs and tried to work out whether they would be suitable for parts in the movie.

I didn't know, for example, that Richard Prebble and Trevor Mallard had just completed making a remake of the Australian movie Romper Stomper. I didn't know, for example, that Alamein Kopu was filming Lost in Space and neither did I know that Maurice Williamson was filming Sparky Meets his Match. I did know, however, that Bill English as Minister of Health had starred in a series of movies based on his experience as Minister of Health. The first one, of course, was called Die Hard 1, then there was Die Hard 2, Die Hard 3, Die Hard 57, and so on. So there was considerable acting experience.

I thought it would be appropriate to approach one of the most photogenic politicians who was most interested in the media - Winston Peters - to see whether he would be interested in a part and he was very keen. He has changed somewhat in recent weeks though because he keeps making demands that we can't meet unfortunately. Now that the latest poll results are showing a rise in the fortunes of New Zealand First I understand that he has just signed with George Lucas to act in Return of the Phantom Menace. I understand too that he is very musical and he actually did offer to sing the theme song. As film directors tend to do I said, "Just put it on tape Winston and send it to me." I thought he would have written an original tune, but he had actually just reworked the theme song from an old movie called Lord Lift me Up Where I Belong.

So I decided not to cast politicians in the movie. In a sense that is important because we tend to let the politics of today influence the debate we need to have, I believe, as a community, about the constitutionality of tomorrow.

For me the issue of constitutional change is fundamental to where we end up in this country and the lives that we shape for our grandchildren. I base my notion of constitutional change on a very simple assumption: that the culture of colonisation was based at best on the fundamental doctrine that I call 'Humpty Dumpty's doctrine of imperial petulance'. This essentially says that if the colonisers' law said something was legitimate, legal and constitutionally proper then that assumption and that statement necessarily made it so. If people wished to challenge that constitutional assumption then rather than enter into reasoned debate, those who drove the culture of colonisation tended to stamp their feet and say, "It is so because I say it is so." This reflected the words of Humpty Dumpty in Lewis Carroll's classic quotation, "Words mean what I choose them to mean, nothing more nor less."

The key cornerstone of the doctrine of imperial petulance in this country is that the Treaty of Waitangi subordinated the rights of Maori politically, socially and economically to those of an entity called the Crown. Even today, Article 1 of the English text of the Treaty is used to justify that assumption. What has tended to be ignored in that assumption are those uniquenesses of the Maori polity which actually made it impossible culturally and politically incomprehensible that rangatira would voluntarily give away their rights to governance. I believe the fundamental assumption that underpins constitutional structures in this land is based on a statement or a myth that flies in the face of Maori reality. This is a reality that is perhaps as unknown and unacknowledged today as is the raising of the head and the eyebrows when Maori greet each other. Underpinning all the Maori moves in recent years to make claims to the Waitangi Tribunal, to protest, to occupy land, to argue for rights to everything from the radio spectrum to indigenous flora and fauna is not just a 'commodification' instinct, it is not just a belief in a need to regrab and reclaim property rights, but rather a belief that we have the inherent iwi right to govern ourselves. Inherent in that right to govern ourselves is the ability to make constitutional and political decisions. So I draw a distinction between those inherent pre-1840 rights, which I firmly believe the Treaty simply reaffirmed, rather than extinguished, and the Treaty-based rights.

I will give a simple example of that. For me the rights created by the Treaty of Waitangi are what can be defined as relational rights. That is as in any treaty, or in any contract, or any agreement the text sets the terms of a relationship, it does not define a partnership, because partnership is not a legal concept that grows out of treaty law. Treaties are signed between sovereign parties. Nowhere in what is now known as international law which began, as I'm sure you know, as the law regulating the conduct of the so-called civilised states. Treaties were an act of sovereign authority. They were based on the sovereign equality of the parties. That equality was not affected by population, by economics, by history. Rather it was the recognition of the rights and authority of the parties to enter into a relationship with each other. If that treaty was indeed the forming of a new relationship between those peoples who had come here in the name of the Crown and those people who had lived here for hundreds of years, then all it did was to set the parameters of a relationship.

Very, very rarely in the history of treaty making, certainly in international law, except in cases where nations have been defeated in war, has one sovereign treaty party voluntarily relinquished its authority to the other treaty party. As I said before, that was certainly something politically and constitutionally incomprehensible to Maori. Yet it is something that we are still being encouraged to believe.

If we accept that the treaty is a matter of relationship then clearly in the last 159 years the relationship has been seriously distorted. The pain and sadness in the hearts of many Maori people exacerbated by poverty and the struggle to survive is simply a reflection of the distortion of that relationship. One of the responsibilities that we take from looking back as we move to look forward is to restore and remove the distortions of that relationship. In recent years we have taken small steps along that path as I alluded to earlier, but we have yet to enter the broad and winding road of recognising the constitutional nature of the relationships. It is my belief that we will not address that issue satisfactorily unless we honestly confront what the past has done and honestly confront the Hollywooding of the history which has led us to the myth making that we are in today.

It seems to me that we need to draw a distinction between the inherent rights I mentioned earlier and the relational rights between the Treaty parties. The settlements with major iwi and hapu, the debates even over the place of urban Maori, and the issue of distributing assets should not be confused with the issue of determining who or what is a Maori. But all of those issues are sourced in the difficult context of sorting out the relational rights. They are part of that process of restoring some balance, equity and equality between the Treaty parties. They are based often on perceptions of our people as to how they would have viewed their rights pre-1840, how those rights have developed to meet changing circumstances, and how they could best be exercised at the end of this millennium and into the new.

More fundamentally in the issue of reordering the constitutional structure there is a need to return to that notion of inherent Maori rights. If we do that I think we can see clearly the need to move away from constitutional change as a matter just of politics, to seeing it rather as a matter of fundamental importance to the whole nation.

I remember when the arguments were raging about the introduction of MMP many people thought changing the electoral system would somehow bring about profound changes in the behaviour of Members of Parliament. That was an illusion quickly dispelled. I fear that if we focus too much on an issue of constitutional change by looking at the existing model for parliamentary governance and perhaps even suggesting a Maori parliamentary-type model as an alternative or as a possibility for constitutional change we will simply reproduce the mistakes of the existing system. For me the issue of constitutional change means not how can we find a new constitutional model that will reflect the Treaty relationship, but what values and what core ideas we see as a country as being important to the future development of our peoples. What are the foundation stones, in other words, that we would set in place upon which our constitutional house could be built?

If we focus too much on the models and forget the culturally shaped nature of the existing models then we will ignore the uniqueness of a different set of values, which could shape that constitutional future. The journey that Maori people are going on as we move forward in the issue of constitutional change is one that our people are travelling on much quicker than most pakeha people. If there is an unwillingness or an inability in many people to learn the truths of our history, to acknowledge the fact that the culture of colonisation by its nature is a racist culture, then there is an even greater unwillingness to look at how those policies, how that history can be constitutionally changed.

Maori people have spent considerable time since 1840 looking at constitutional models that can sit within a new and changing environment. This has gone from the development of huiaro in the early nineteenth century to the kotahitanga, to the kingitanga, to the kohanganui, to the Maori parliaments and Ngati Kohanganui and to more recent debates within the Maori community about a Treaty-based parliamentary model. It has been an issue that has exercised the minds of some of the greatest thinkers in the Maori world.

What is happening now is an even more important, exciting and in a sense unique trend in the constitutional debate. Many of our people are asking what we want from a constitutional model and what we want a constitutional framework to deliver. What many pakeha people will find interesting, perhaps a little scary, is not just the nature and the fact that the debate is taking place, but the important things that Maori people are considering. They have very little to do, I regret, with neo-liberalism. They have very little to do with putting New Zealand on the economic edge. They have very little to do with IT indeed. But they have a great deal to do with what sort of society we could shape in terms of the relationships between people which could then take advantage of those other things. In that sense it is a very pre-1840 based debate.

What is the proper relationship of humans one to another? What are the proper values that need to be enshrined in a relationship between humans and mother earth? What is the proper relationship that acknowledges the distinctiveness of the many peoples who have come to this land? How can we build a constitutional house that reflects and indeed nurtures those while allowing us to move into this brand new technological age.

The journey that we are embarking on as Maori is one which some pakeha people are now beginning to embark upon as well. It will necessarily be a long and difficult journey. If there is one guiding thought that I can leave with you about that journey it is to forgo for a while as we go through this necessary constitutional debate in our land the notion of linear time and accept that there is actually a Maori concept of time. This is not something that is now dismissed, joked about, or of which derogatory comments are made whenever Maori people arrive late for a meeting. Rather, it is the notion of time that things will happen when they are ready to happen and they will only happen when people have had a chance to think, to debate and to discuss. It is not a notion of time which puts off until tomorrow what can be properly solved today, but rather acknowledges that some time today is not time enough.

If we are to rebuild the relationships shaped by the Treaty of Waitangi, based on the inherent rights of our people to governance while recognising the rights of those who have come here, and if those relationships have been distorted over 159 years of history then we will not remedy them quickly. But remedy them we must. If we do not find a new constitutional underpinning to this land then whatever dreams we may fashion about the knowledge economy and so on will come to nought for most Maori people. We will continue to be disempowered, poor, and unable to participate fully in the systems established in our land. We will continue to suffer under a deceit from the Hollywooding of myths that have shaped this country. The Black American writer James Baldwin once said: "No country can exist for long if it is based on a deceit because deceits have a profound affect on the reason of a nation."

I believe that when our peoples joined together to establish a new relationship in the Treaty they looked forward not just to a time of hope but a time of reason. They looked forward to a time of truth rather than a time of the myths that became part and parcel of colonisation.

I will close with just two final injunctions. One is by a native American novelist, Leslie Marman Silko. In a very moving and profound novel called The Ceremony Silko said: "If we continue to harbour our lives under myths then we will forget what we have done to each other and we will not see what we can still do to each other."

The second quote is from a report of the Waitangi Tribunal. In a very powerful section of their 1985 report on the claim about the Crown responsibilities to the protection of Maori language the Tribunal talked about the disempowerment that comes from the destruction of language. The Tribunal actually said: "If people suffer disempowerment they also suffer a sense of injustice and the Treaty was not meant to be built upon injustice."