Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State 9813341718, 9789813341715

Citation preview

Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State Dominic O’Sullivan

Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State

Dominic O’Sullivan

Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State

Dominic O’Sullivan Charles Sturt University Canberra, Australia

ISBN 978-981-33-4171-5 ISBN 978-981-33-4172-2 (eBook) https://doi.org/10.1007/978-981-33-4172-2 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration: Christopher Bellette/Alamy Stock Photo This Palgrave Macmillan imprint is published by the registered company Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore

For Xavier, Tui and Delphi

Acknowledgements

This book was written on Ngunnawal country with the support of a Charles Sturt University Senior Research Fellowship, and with the assistance of the University’s Institute for Land, Water and Society. It was also written with the support of my family. My wife Cara, whose work at the forefront of creating a more just and civil society, provides inspiration and my deep admiration. My daughter Lucy and son Joey indulge the hours it takes to write a book, but are always ready to help with their own stories, good humour, ever willingness to open a bottle of beer, and by keeping alive the spirit of Sarah Therese, whose memory this book honours. My mother Tui, father Vincent and sister Deirdre for their ideas, proofreading of the text, and for their interest in the story it tells. Xavier, Tui and Delphi, to whom this book is dedicated, for keeping the M¯aori language alive. Ka nui te aroha ki a koutou.

vii

Contents

1

2

3

Introduction 1.1 The Uluru Statement from the Heart and the Origins of the Colonial State 1.2 Treaties 1.3 Recognition 1.4 Structure References

1 1 6 10 16 22 27 27 28 30 37

Recognition 2.1 Introduction 2.2 Recognition and Self-Determination 2.3 Recognition or Misrecognition 2.4 Recognition: Beyond Egalitarian Justice 2.5 Recognition: Recognising the State, Resurgence and Recognising the Self? 2.6 Recognising a Non-colonial Liberal State 2.7 Conclusion References

40 44 47 48

Recognising Sovereignty and Citizenship 3.1 Introduction 3.2 Recognising a New and Inclusive Sovereignty 3.3 Sovereignty as Possibility

53 53 54 59 ix

x

4

5

6

CONTENTS

3.4 Sovereignty as Legitimacy 3.5 Recognising Citizenship 3.6 Inclusive Citizenship 3.7 Conclusion References

61 65 67 70 72

Makarrata, Truth and Treaties as Social Contracts 4.1 Introduction 4.2 Makarrata: Saying Sorry, ‘Coming Together After a Struggle’ 4.3 Once Truth Is Told 4.4 Social Contract 4.5 Canadian Treaties: Social Contract or Colonial Coercion 4.6 Australian Treaties as Social Contracts 4.7 Australia: Treaty Negotiation 4.8 Modern Canadian Treaties: Lessons from British Columbia 4.9 Conclusion References

75 75 76 80 82 84 89 91 97 102 103

The Treaty of Waitangi 5.1 Introduction 5.2 The Treaty of Waitangi and the Nature of Political Authority 5.3 Treaty Principles 5.4 The Treaty and Policy-Making 5.5 Constitutional Certainty, Political Certainty 5.6 Whose Is the Right to Govern? 5.7 Conclusion References

107 107

Recognition, Pluralism and Participation 6.1 Introduction 6.2 Recognition, Plurality and Political Inclusion 6.3 Pluralism: Equality Through Difference 6.4 Pluralism, the State and Participatory Parity 6.5 Participation and Policy Entrepreneurship

129 129 130 133 136 139

108 111 114 117 121 126 126

CONTENTS

7

8

9

xi

6.6 Conclusion References

149 149

Beyond Consultation: Participation as Influence 7.1 Introduction 7.2 Power and Culture 7.3 The Waitangi Tribunal Health Inquiries (2019) and M¯ aori Policy Leadership 7.4 Principles of the Treaty of Waitangi in Health Policy 7.5 The Treaty of Waitangi and Health Policy: Beyond Partnership Towards Self-Determination 7.6 Bureaucratic Accountability for Policy Success 7.7 Beyond Partnership to Independence 7.8 Conclusion References

153 153 154

Power and Presence: Indigenising Public Decision-Making 8.1 Introduction 8.2 Democratic Inclusion Beyond the Voice 8.3 Making Bureaucracies Work: Moral Courage and the Street Level Bureaucrat 8.4 Self-Determination and Schooling 8.5 Indigenous Agency: Subjecthood, the State and Self-Determination 8.6 Conclusion References Conclusion

Index

157 161 163 169 171 175 176

179 179 180 183 186 193 199 200 203 211

CHAPTER 1

Introduction

1.1 The Uluru Statement from the Heart and the Origins of the Colonial State In 2015, the Australian Prime Minister Malcolm Turnbull and Leader of the Opposition Bill Shorten, appointed a Referendum Council to consider how the national Constitution should be amended to recognise Indigenous Australians (2020). The Constitution may be amended only by referendum, and the Council’s task was to break a long-standing impasse on recognition’s form and purpose. The Council’s two substantive proposals were more far-reaching than had been expected and reflected a much deeper understanding of the concept of recognition than governments had previously discussed. The Council’s recommendations were published, in 2017, as the Uluru Statement from the Heart (Referendum Council 2017). The first recommendation was to hold a referendum to amend the Commonwealth Constitution, not to provide symbolic recognition of the kinds previously proposed and introduced below, but to enshrine a representative Indigenous body with the power to scrutinise legislation and speak directly to the parliament. Through the parliament, it would also speak to the Australian people (Referendum Council 2017). It would be, as a parliamentary select committee would later style it, a Voice (Parliament

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 D. O’Sullivan, Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State, https://doi.org/10.1007/978-981-33-4172-2_1

1

2

D. O’SULLIVAN

of Australia 2018). The second and also potentially far-reaching recommendation was to establish a Makarrata or truth-telling Commission that would oversee reconciliatory agreements between Indigenous nations and governments. These agreements could include treaties. However, the Council’s nationwide consultation process was not universally accepted. Nor was the recommendations’ order of priority. Seven of the 250 delegates, including the Victorian Green party Member of Parliament Lidia Thorpe ‘walked out’ of the Uluru deliberations arguing that treaties, which the makarrata process implies but does not stipulate, should have been given singular priority. Their argument was that treaties were prior to the constitutional amendment to allow the Voice, because treaties recognise enduring sovereignty. Ahead of her election to the Australian Senate in 2020, Thorpe told the Sydney Morning Herald that in the absence of a treaty she could not feel part of ‘Team Australia’ (Without treaty, incoming senator can’t feel party of ‘Team Australia’, para. 2). Her argument is: Let’s deal with the crux of the problem that we have in this country. That is that we have never had an agreement with the First People to be here. Let’s stop trying to divert to all these other things like changing the date [of the national day which commemorates the arrival of the British First Fleet in 1788] and constitutional recognition and all these fluffy things that do nothing. Let’s deal with the hard issue. (Sydney Morning Herald, 25 June 2020, Without treaty, incoming senator can’t feel party of ‘Team Australia’, paras. 29–30)

Recognition was not a new concept but, in the Council’s recommendations, distinctive meanings and pathways were proposed to give it effect. They are neither easy nor ‘fluffy’ because even if not to the extent that some people think are just, they do contest the colonial characteristics of the contemporary state, and are significant statements of Indigenous self-recognition. Although the Council was established by the state, it was clear that its members did not see the state as the ‘sole recognizing party’ (Elliott 2018, p. 66). This assertion of Indigenous political agency was significant because if it is only the state that recognises, it is only the state that determines what is just and what is unjust. As Coulthard (2014) explained, if the state has the final word on what is just, what is to be recognised and what is not, then the colonial order is maintained. Recognition on these terms allows the state to determine the limits to what it

1

INTRODUCTION

3

means to be Indigenous and what it means, for example, to be an Indigenous deliberator in relation to land, language, culture, economic security and participation in public affairs; domains in which Indigenous peoples make particular claims on the state and which treaties might be expected to address. As it is, internationally, there is a ‘righteous resentment’ to be recognised (Coulthard 2014, p. 126), and the state’s capacity to singularly determine the bounds of Indigenous aspiration is diminished only if the state and Indigenous peoples recognise one another as equal participants in a deliberative process set up to establish just terms of political association. In this sense, recognition responds to the politics of whiteness (Lake and Reynolds 2008) which prevailed at the inception of the Commonwealth of Australia in 1901 and, indeed, continues to influence Australia’s political culture well into the twenty first century. The first Australian Prime Minister Edmund Barton, and the second Alfred Deakin who held office on three occasions between 1903 and 1910, were influenced by the supposed failures of multi-racial ideas in the United States (Lake 2004). Multi-racialism’s rejection contributed to a ‘transnational circulation of emotions and ideas, people and publications, racial knowledge and technologies that animated white men’s countries and their strategies of exclusion’ (Lake and Reynolds 2008, p. 4). The politics and scholarship of whiteness presumed white ‘ownership of the earth forever and ever, Amen’ (Du Bois, cited in Lake and Reynolds 2008, p. 2). Otherness was a threat to this aspiration, and was demonstrated not just in colonial antipathy towards Indigenous peoples, but also in the White Australia policy which restricted non-white immigration to Australia from the Commonwealth’s foundation until it was officially abandoned in the 1970s. Whiteness was differently played out in New Zealand; conditioned by the different expressions of M¯aori resistance and resurgence, and as this book explains contextualised by the Treaty of Waitangi, from 1840, and also by guaranteed M¯aori seats in Parliament from 1867. In the contemporary politics of both Australia and New Zealand recognition provides coherent responses to colonial superiority. But on the other hand, as Coulthard (2014) explains in a Canadian context, there are strongly held arguments that recognition is capable only of serving colonial objectives because it necessarily assimilates people into a state that they did not construct and which cannot secure their substantive political voice. However, from this book’s perspective there is value in identifying, explaining and analysing a transformative potential that both treaties, and

4

D. O’SULLIVAN

the Voice, could have as instruments of recognition. The book’s analysis is informed by the New Zealand experience; a modern state constituted by treaty between the British Crown and M¯aori chiefs on behalf of their hapu [sub-tribes] in 1840, and since 1867 also distinguished by guaranteed M¯aori representation in the national parliament. Where it is instructive to the Australian case, the book also makes comparative reference to Canadian treaty-making and First Nations’ public policy. Australia’s human occupation is at least 50,000 years’ duration. British settlement commenced in 1788. Its sovereignty was asserted on the grounds that the continent, and the island of Tasmania, were terra nullius , or unoccupied. This was, in Reynolds’ (1996) view a ‘Eurocentric jurisprudence of convenience’ (p. xii), though it was consistent with Locke’s (1887) theory of labour which held that land ownership could only be claimed on land to which one applied agricultural labour. Sovereignty also requires structured political organisation, and from the British perspective, neither of these criteria were met (Reynolds 1996), even though later scholarship depicts pre-contact Indigenous societies as highly organised political communities with developed geo-political and cultural associations with the land from which material and spiritual sustenance was derived (O’Sullivan 2005). Settlement was often violent with terra nullius accepted as the basis of colonial government until 1992 when the High Court of Australia found that in 1788: ‘The lands of this continent were not… practically unoccupied’ (High Court of Australia The High Court of Australia 1992). By this time, the five British colonies on the Australian continent and Tasmania, had federated (in 1901) to form the Commonwealth of Australia. Indigenous people were explicitly excluded from the negotiations to establish the Commonwealth, though in 1967 its Constitution was amended to allow their inclusion in the national population census and to allow the Commonwealth to make laws relating to the first inhabitants, which had until this time been a reserve power of the states. There was not, however, any requirement for such laws to be made in Indigenous people’s favour. The referendum did not provide any kind of distinctive recognition, but took on the ‘mantle’ of providing Indigenous persons with citizenship of the Commonwealth (Chesterman and Galligan 1997, p. 184). While Indigenous people had not, in fact, been formally excluded from citizenship, they were in most meaningful terms ‘citizens without rights’, which was significant because as Chesterman and Galligan (1997) explained it:

1

INTRODUCTION

5

[I]n order to be citizens without rights… citizenship had to be an empty category, and it was. The Australian founders eschewed putting any core positive notion of citizenship in the Constitution precisely to allow the States to perpetuate their discriminatory regimes and to enable the new Commonwealth Parliament to implement a national regime of discrimination. (p. 184)

Indigenous people in Queensland and Western Australia, for example, were unable to vote until 1965 and 1962 respectively (Chesterman and Galligan 1997). Under the Queensland Elections Act 1885 there had been an entitlement to vote if a threshold for freehold land ownership was met, but in 1905, the Act was amended to remove this ‘faint chance’ of Indigenous people being able to vote (Chesterman and Galligan 1997, p. 36). Elsewhere, there were effective though not always absolute restrictions on the Indigenous franchise. Restrictions on Indigenous citizenship also came through legislation such as Queensland’s Aboriginals Protection and Restriction of the Sale of Opium Act 1897 . The Act was replicated in other jurisdictions and allowed ministers to order an Indigenous person to reside in reserves ‘subject to such conditions, as may be prescribed’ (Chesterman and Galligan 1997, p. 40). Conditions commonly extended to the permission of the Protector of Aborigines’ being required for an Indigenous person to marry. The Protector also controlled matters such as housing and access to employment, health care and education. During the First World War, around 400 Indigenous men found that enlisting in the army provided a way of avoiding these restrictions (Hall 1997). Although, there was a legislative barrier to their enlistment, many were able to circumvent the restriction and they were, for a time, citizens and soldiers. However, on their return from overseas service, these Black Diggers found their lives still controlled by the state, that they were banned from membership of the Returned Services League and unable to benefit from various measures of public support available to other former soldiers. Indigenous soldiers in other wars, including the Second World War faced similar experiences and it was not until the 1960s that measures like the civil rights Freedom Ride saw Indigenous citizenship routinely encompassing the right of access to public swimming pools, and even in some circumstances, the right of access to public schools. (Chesterman and Galligan 1997). Resistance in favour of Indigenous access to the full rights and capacities of citizenship has distinguished the history of the Commonwealth of

6

D. O’SULLIVAN

Australia since its foundation. Though there is no guarantee, the potential for treaties and the Voice to transform that citizenship into a body of substantive political capacities is significant.

1.2

Treaties

Treaties have been central to Indigenous political thought at least since the National Aboriginal Conference requested that the Commonwealth negotiate such an agreement in 1979, and secured the Prime Minister Malcolm Fraser’s (1975–1983) agreement to discuss the proposition further (Read 2006). However, by 1983 the Senate Standing Committee on Constitutional and Legal Affairs had come to the conclusion that as treaties were agreements between sovereign states, a compact should instead be negotiated and put to a referendum for inclusion in the Constitution (Parliament of Australia 1983). While this argument was consistent with Prime Minister John Howard’s (1996–2007) later objection to a treaty, the idea of the compact did not gain traction as an alternative, and by 1988 the Prime Minister Bob Hawke (1983–1991) had accepted the propriety of a treaty (ABC 2019). Although his government failed to conclude agreements of this kind, this was not due to the philosophical objection that prevented the Howard Government (1996–2007) from pursuing the idea, although without sufficient force to prevent its advocates from keeping it on the public agenda. The Uluru Statement has not, however, settled disagreements over appropriate parties to treaties. Who, for example, should recognise whom or what? Should there be many treaties between Indigenous nations and the states and territories, along with separate agreements with the Commonwealth? Should there be agreements between Indigenous nations and the Commonwealth alone, or perhaps a single agreement between the Commonwealth and some kind of newly constructed federal Indigenous entity? One of the arguments for treaties being concluded with the Commonwealth is that these are international agreements and it is the Commonwealth that exercises the foreign affairs power under the Constitution (Commonwealth of Australia 2010, s. 51(xxix)). From this perspective, the strongest possible affirmation of extant Indigenous sovereignty is being sought; an affirmation that Howard explicitly rejected on the grounds that Australia is a sovereign state, Indigenous people are part of that state, and states cannot conclude treaties with themselves (Howard, in Chesterman and Galligan 1997, p. 218). An alternative position is that

1

INTRODUCTION

7

treaties would recognise and give practical significance to extant Indigenous sovereign authority but would, paradoxically, affirm the sovereignty of the state. The limits and possibilities of such recognition is this book’s principal theme. The book carefully avoids proposing exactly how treaties should affirm inherent rights of indigeneity. The substance of a treaty is for Indigenous nations and the state to work out. It is especially important that Indigenous people may determine for themselves how the rights that inhere from prior occupancy will be exercised, including rights to land, language and culture, for example. It is also for Indigenous nations to work out for themselves what it takes for the state to acquire legitimacy in their eyes. However, treaties would at least affirm Indigenous presence and help the state and Indigenous nations to work out the terms of substantive and meaningful citizenship. They may, for example, proceed with regard to the Barunga Statement put to the Prime Minister Bob Hawke, in 1988, by the Barunga people in the Northern Territory. The Statement requested recognition of the rights • to self-determination and self-management, including the freedom to pursue our own economic, social, religious and cultural development; • to permanent control and enjoyment of our ancestral lands; • to compensation for the loss of use of our lands, there having been no extinction of original title; • to protection of and control of access to our sacred sites, sacred objects, artefacts, designs, knowledge and works of art; • to the return of the remains of our ancestors for burial in accordance with our traditions; • to respect for and promotion of our Aboriginal identity, including the cultural, linguistic, religious and historical aspects, and including the right to be educated in our own languages and in our own culture and history; • in accordance with the universal declaration of human rights, the international covenant on economic, social and cultural rights, the international covenant on civil and political rights, and the international convention on the elimination of all forms of racial discrimination, rights to life, liberty, security of person, food, clothing, housing, medical care, education and employment opportunities, necessary social services and other basic rights.

8

D. O’SULLIVAN

We call on the Commonwealth to pass laws providing: • A national elected Aboriginal and Islander organisation to oversee Aboriginal and Islander affairs; • A national system of land rights; • A police and justice system which recognises our customary laws and frees us from discrimination and any activity which may threaten our identity or security, interfere with our freedom of expression or association, or otherwise prevent our full enjoyment and exercise of universally recognised human rights and fundamental freedoms (Common Grace 2020, Barunga Statement presented to Prime Minister Bob Hawke in 1988, paras. 2–3). Treaties should at least provide frameworks for respectful and just terms of association. On this basis, legitimacy would presumably require no policy development to occur without Indigenous perspectives being heard, which is the intended effect of a guaranteed Voice to parliament. Neither a Voice nor treaties provide panaceas for Indigenous self-determination or just political relationships, which means that these perspectives may not always be reflected in public policy, but when parliament takes decisions to the contrary it would at least have to defend its position, and have it exposed to public critique from an authoritative and representative institution. Much depends on the precise form that these arrangements take, but they do invite new, inclusive and expansive ways of thinking about democratic possibilities. As an instructive comparison, the book introduces and adds to contemporary New Zealand debates over the place of the Treaty of Waitangi in contemporary politics and public policy. The Treaty was drafted in English by Anglican missionaries who translated the instrument into the M¯aori language. The English text included a cession of sovereignty to the British Crown, while the M¯aori text (Te Tiriti) conferred a qualified right to govern. This difference in emphasis is among the reasons for the Treaty being a contested instrument in modern politics, and the question of the cession of sovereignty is discussed in Chapter 3. Significantly, however, it was the M¯aori text that was debated at Waitangi on 5 and 6 February 1840 and which was signed by more than 500 chiefs. This, and the international legal doctrine contra preferentum which holds that agreements such as this are to be interpreted

1

INTRODUCTION

9

in favour of the non-drafting party, explains consistent M¯aori arguments that it is the M¯aori text which binds each party. The Crown, on the hand, privileges the English text but does admit the M¯aori text as an interpretive guide. The Waitangi Tribunal (explained below) is guided by both in its responses to alleged breaches of the Treaty. While the Treaty’s meaning is contested, it is undoubtedly an instrument of significant moral, political and jurisprudential importance and an English translation of its M¯aori text shows why its potential, as a social contract between the British Crown and M¯aori, is influential and consistently affirmed by M¯aori as a framework for just terms of association. Victoria, the Queen of England, in her concern to protect the chiefs and the subtribes of New Zealand and in her desire to preserve their chieftainship and their lands to them and to maintain peace2 and good order considers it just to appoint an administrator one who will negotiate with the people of New Zealand to the end that their chiefs will agree to the Queen’s Government being established over all parts of this land and (adjoining) islands and also because there are many of her subjects already living on this land and others yet to come. So the Queen desires to establish a government so that no evil will come to M¯aori and European living in a state of lawlessness. So the Queen has appointed me, William Hobson a Captain in the Royal Navy to be Governor for all parts of New Zealand (both those) shortly to be received by the Queen and (those) to be received hereafter and presents to the chiefs of the Confederation chiefs of the subtribes of New Zealand and other chiefs these laws set out here. 1.2.1

The First

The Chiefs of the Confederation and all the Chiefs who have not joined that Confederation give absolutely to the Queen of England for ever the complete government over their land. 1.2.2

The Second

The Queen of England agrees to protect the chiefs, the subtribes and all the people of New Zealand in the unqualified exercise of their chieftainship over their lands, villages and all their treasures. But on the other hand the Chiefs of the Confederation and all the Chiefs will sell land to

10

D. O’SULLIVAN

the Queen at a price agreed to by the person owning it and by the person buying it (the latter being) appointed by the Queen as her purchase agent. 1.2.3

The Third

For this agreed arrangement therefore concerning the Government of the Queen, the Queen of England will protect all the ordinary people of New Zealand and will give them the same rights and duties of citizenship as the people of England (Waitangi Tribunal 2016). The book considers what it means to interpret this agreement as a social contract grounded in each party’s recognition of the other as the holder of legitimate political authority. It also considers the implications of the agreement for relationships between extant M¯aori authority and the authority of the state. A parallel consideration is the nature of M¯aori authority inside the state as citizens to whom equal personal political capacities have been promised.

1.3

Recognition

In Australia, giving constitutional recognition to inherent and extant Indigenous political authority is difficult. In recent Australian history, these difficulties have been overshadowed by the simplification and understatement of recognition’s potential. In 1999 the Prime Minister, John Howard, proposed a limited form of recognition through a new Preamble to the Constitution. His intent may have been to avoid substantive recognition by mitigating arguments for more far-reaching measures including treaties, which others were promoting to acknowledge that the British occupation of Australia in 1788 was violent and not by Indigenous consent (Reynolds 1996). By the time it was put to a referendum, Howard’s proposed Preamble had evolved into a generic description of Australian nationhood. It had no relevance to the constitutional rights of Indigenous peoples and 66% of voters rejected the proposal. The rejected Preamble read: With hope in God, the Commonwealth of Australia is constituted as a democracy with a federal system of government to serve the common good. We the Australian people commit ourselves to this Constitution:

1

INTRODUCTION

11

proud that our national unity has been forged by Australians from many ancestries; never forgetting the sacrifices of all who defended our country and our liberty in time of war; upholding freedom, tolerance, individual dignity and the rule of law; honouring Aborigines and Torres Strait Islanders, the nation’s first people, for their deep kinship with their lands and for their ancient and continuing cultures which enrich the life of our country; recognising the nation-building contribution of generations of immigrants; mindful of our responsibility to protect our unique natural environment; supportive of achievement as well as equality of opportunity for all; and valuing independence as dearly as the national spirit which binds us together in both adversity and success. (cited in Williams and Hume 2010, pp. 185–186)

The rejected Preamble’s broad focus meant that the strength of the vote against it was not necessarily a measure of public antipathy towards the constitutional rights of Indigenous peoples. Indeed, McKenna (2000) argued that there was not a strong public campaign on either side of the argument. By 2007 Howard had developed an alternative proposal ‘to formally recognise Indigenous Australians in our Constitution, their history as the first inhabitants of our country, their unique heritage of language and culture, and their special, though not separate, place within a reconciled indivisible nation’ (Howard 2007). However, this referendum was not pursued following the Howard Government’s defeat in 2007. Further proposals were raised but not pursued by governments until 2015, when the Referendum Council was appointed to develop a new referendum question, but instead made its broader recommendations. Theoretically, recognition is simply the acknowledgement of one by another (Hegel 1977). It is firstly a psychological act, but one with farreaching implications for political relationships and for understanding who holds places of influence in a political system and who does not. Recognition is psychologically necessary because ‘self-consciousness exists in and for itself when, and by the fact that it so exists for another, that is, it exists only in being acknowledged’ (Hegel 1977, p. 111). If political capacities, including the capacity to exercise the right to selfdetermination, are relative and relational to the political status that others

12

D. O’SULLIVAN

enjoy one also needs to receive the other’s recognition. As such, recognition is necessary if one is to be politically present in meaningful ways, and thus able to influence the affairs of the societies in which one lives. Recognition is, therefore, profoundly political. For Indigenous peoples’, recognition is potentially much more than the symbolic acknowledgement of prior occupancy or occasional concessions to cultural difference. It is, as Fraser (2000) proposes, a matter of political status. In particular, recognition should enable people to participate in public life on the grounds that their voices are both legitimate and potentially influential. Recognition is preliminary to what Fraser (2000) calls participatory parity, which is significant because although it is consistent with the liberal democratic ideals of Australia’s political system, it is a system ultimately unable to realise its inclusive ideals to the extent that it would ensure that Indigenous people no longer reside on its periphery as people whose fundamental equality is not substantively or consistently admitted. Participatory parity means that as citizens, people are entitled to parity of esteem, which presumes two conditions. ‘First, the distribution of material resources must be such as to ensure participants’ independence and “voice”… the second condition requires that institutional patterns of cultural value express equal respect for all participants and ensure equal opportunity for achieving social parity’ (Fraser 2003, p. 36). Recognition is required to allow people to meet Aristotle’s ideal of the citizen as one who ‘has the power to take part in the deliberative or judicial and administrative power of the state’ (Hindess 2002, p. 94). Treaties, potentially, set out the principles through which peoples, as well as individuals, may deliberate. They require that each party recognise the legitimacy of the other’s presence and the scope and limits of the other’s political authority. The Treaty of Waitangi, for example, does this by affirming the state’s right to govern, the M¯aori right to authority over their own affairs, and the M¯aori right to participate in government. As an ideal, the guaranteed M¯aori seats in parliament, make substantive participation a normative expectation. The proposed Voice in Australia may be seen in the same way. These arrangements contribute, or potentially contribute, to the public recognition of meaningful Indigenous presence as legitimate. They are important to the democratic imperative of allowing all people equivalent opportunities to be heard in decision-making processes, and to test and contest others’ ideas.

1

INTRODUCTION

13

The extent to which people may contribute to the development of the societies in which they live is an important test of fairness in the distribution of citizenship’s capacities. Recognition means that Indigenous people would, and should, always be able to contest ideas that they oppose and propose ideas of their own from positions of potential influence. While the Voice is intended to contribute to this objective inside the state, it is equally significant for treaties to recognise Indigenous authority outside the state. That is, the authority to manage their own affairs in relation to land and culture, health and education and economic development, for example. Self-determination is a political authority that belongs to Indigenous peoples as much as it belongs to anybody else (UN 2007). For Indigenous people, it is a right that belongs in unique context and which must be worked out with reference to conflicting accounts of public sovereignty and the nature of public authority. For example, in Australia, Rousseau’s (1968) presumption of sovereignty as an authority that is legitimate because it is the outcome of a social contract formed by people in free association with one another does not apply. Is there, however, scope for alternative social contracts, expressed through treaties, but grounded in mutual recognition when people do not share a common culture and have not come together by their own free will? A question which assumes particular moral urgency when there is no option to withdraw from the political relationship that colonisation has imposed. The Uluru Statement seeks recognition of the right to participate distinctively in state policy making and perhaps, through treaties, the statement expects Indigenous prior occupancy to be recognised as a fact of enduring political significance, not just a fact to be noted symbolically. The right to distinctive participation through measures such as the guaranteed M¯aori seats in the New Zealand Parliament is discussed throughout this book. Other models, consistent with liberal democracy include the Sami Parliaments in Finland, Sweden and Norway. In Norway and Sweden these parliaments are elected by popular vote, although their structures and responsibilities differ. In Norway, the Parliament, or Samediggi’s purpose is to ‘enable the Sami people in Norway to safeguard and develop their language, culture and way of life’, while in Sweden the Parliament is a ‘special government agency’ (Josefsen et al. 2015, p. 37). The Norwegian body may consider ‘any matter that in the view of the Sami parliament particularly affects the Sami people’, while the Swedish

14

D. O’SULLIVAN

body may ‘monitor issues related to Sami culture’ (Josefsen et al. 2015, pp. 37–38). Both are voices to government, not voices in government and may be instructive points of comparison for Australia. Like treaties, the nature and purposes of a Voice to Parliament raise politically contentious questions about the nature of recognition and its purposes. Treaties, for example, create relationships of obligation, whereas terra nullius presumed no obligation in the creation of the colonial state. Indigenous nations had no political legitimacy. Yet, contemporary recognition requires that in return for the state’s acceptance of their legitimacy, Indigenous nations must do more than pragmatically accept that the state is here to stay. They must accept that its presence is morally legitimate. What, then, must the state do to acquire that legitimacy, which may occur only through Indigenous peoples’ free and informed consent? If such recognition is not possible there is no moral basis for the conclusion of treaties. Recognition is a constituent of a liberal theory of indigeneity (O’Sullivan 2014, 2017) which is concerned with how liberal democracy, as it is understood and practised in colonial states like Australia and New Zealand, may be transformed to ensure inclusivity and respect in political systems and in policy-making, while also ensuring Indigenous independence and authority over their own affairs. In this sense, Indigenous citizenship is differentiated so that it may be exercised both inside and outside the state, as sites of distinct though overlapping political authority. Like recognition, indigeneity is concerned with distinctive participatory parity because: it is unjust that some individuals and groups are denied the status of full participation in social institutions simply as a consequence of cultural value in whose construction they have not equally participated and which disparage their distinctive characteristics or, the distinctive characteristics assigned to them. (Fraser 2003, p. 29)

Recognition is the opposite of misrecognition and a liberal theory of indigeneity is the opposite of liberal exclusivity. Political arrangements are inevitably exclusive when they arise from understandings of individual liberty as a right that is devoid from culture, and not legitimately contextualised by colonial experience or by membership of a distinct cultural group. Misrecognition positions colonial experience and Indigenous group membership as democratic disabilities. Misrecognition is the

1

INTRODUCTION

15

outcome of positioning ‘some social actors as normative and others as deficient or inferior’ (Fraser 2003, p. 30). In contrast, a liberal theory of indigeneity removes the requirement to think and act according to the cultural norms of majority post-settler populations as a pre-condition for political participation. When recognition is, in contrast, positioned as a constituent of a liberal theory of indigeneity it becomes a constituent of Indigenous agency. It carries political aspirations transcending the claim that the state should operate in more respectful ways. It is responding to a political problem much bigger than symbolic disrespect and is drawn into political debate for its potential to transform the workings of liberal democracy. Recognition is politically significant because: our identity is partly shaped by recognition or its absence, often by the mis recognition of others, and so a person or a group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confirming or demeaning or contemptible picture of themselves. Nonrecognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted and reduced mode of being. (Taylor 1992, p. 25)

Recognition will ideally support a liberal theory of indigeneity’s claim that, through differentiated citizenship, Indigenous peoples are entitled to: difference in cultural expression, but sameness in political opportunities; difference in forms of land tenure, but sameness in capacity to make decisions about how land will be used; difference in the way one is taught at school but sameness in terms of educational quality. (O’Sullivan 2017, pp. 51–52)

These marks of positive difference reflect what Maaka and Fleras (2005) call indigenising the bureaucracy which would ideally be reflected in meaningfully inclusive and substantive Indigenous capacity to influence bureaucratic outcomes. However, for Coulthard (2014), these expectations presume that the colonial state is capable of transformation and that a coloniser/colonised binary is an appropriate framework for thinking about Indigenous people and their political aspirations. He proposes, instead, an independent politics based on the observation that: ‘Since the Other was reluctant to recognize me, there was only one answer: to make

16

D. O’SULLIVAN

myself known’ (Coulthard 2014, p. 141). This is an important caution against accepting recognition as a certain path to post-colonial justice. It is a reminder that meaningful recognition does depend on the Indigenous being known. However, being known only to oneself presumes a politics of isolation, which does not have the same emancipatory potential as being known both inside and outside the state and claiming a right to distinctive influence wherever decisions are made. It is through being known wherever decisions are made that one mitigates Coburn’s (2016) fear that recognition ‘appears to resolve the contemporary colonial conundrum: the need to secure Indigenous consent for persistent colonialism and land expropriation, in a context in which brute force is now acceptable only as a “last resort”’ (p. 80). The alternative expectation that recognition will secure the selfdetermination to which Indigenous peoples are entitled, in ways that they would find acceptable is significant, though Coulthard (2014) may ultimately be correct to propose that colonialism’s entrenched and necessarily exploitative character makes this expectation naive and unrealistic. But, from either perspective, the questions that recognition asks, means that one must at least consider what constitutes moral legitimacy, and what is required for people to come together after a struggle as the Uluru Statement proposes through the makarrata process; a process of agreement making between government and First Nations, and grounded in truthtelling about the colonial relationship (Referendum Council 2017). These are important considerations for contemporary Australian politics and citizenship. They are also important in New Zealand, even though the Treaty of Waitangi has existed as a social contract for 180 years. The contests and conflicts over its meaning and implementation make New Zealand an instructive site of comparison as Australia considers recognition’s merits, limits and possibilities.

1.4

Structure

Chapter 2 examines the political significance of Indigenous nations and the state offering one another their mutual recognition. It argues that recognition theory’s potential transcends the objections that some Indigenous scholars have raised against what they maintain is a measure concerned only with the state’s quest for moral legitimacy. It notes that the self-recognition advocated by Coulthard (2014), for example, presumes a politics of isolation when mutual recognition, instead,

1

INTRODUCTION

17

supports a search for spaces of Indigenous political authority both inside and outside the state. The chapter shows how and why recognition is more than a simple acknowledgement of prior occupancy, but an assertion and substantive acceptance of an Indigenous people’s right to political presence. That is, a right to political presence as independent nations and as distinctive members of the nation state. Recognition’s potential is to ensure that Indigenous people may deliberate in public affairs with the same capacities for citizenship as anybody else. Misrecognition is the obvious counterpoint and pre-condition for the hegemonic relationship that the perpetuation of colonial relationships demands. Chapter 2 shows that while recognition does require Indigenous peoples to admit the legitimacy of the state, it explicitly rejects the notion that recognition allows the state to maintain its colonial character. It requires a re-configuration of prevailing ideas about how the state should work and for whom it should work. However, it is true that the self-determination that recognition allows, is a relative and relational authority. It is not an absolute authority that meets the demands that many Indigenous scholars and political actors think are just. It may not satisfy the full demands of a non-colonial politics, but it does offer potentially significant political transformation. Whether these are sufficiently significant to warrant the conclusion of treaties, which as a quid pro quo must recognise the state’s legitimacy, is a matter for each Indigenous nation. Chapter 3 argues that mutual recognition is a concession that state sovereignty is not an all-encompassing and absolute hegemonic authority over Indigenous people. Recognition necessarily affirms the assumption that sovereign authority is dispersed, which is preliminary to treaties being able to consider how, where and why independent Indigenous authority over their own affairs should exist alongside the Indigenous citizen’s share in the collective authority of the state. The chapter shows that substantive Indigenous political presence may occur through sovereignty as a social contract (Rousseau 1968). It is through this contract that the state may acquire moral legitimacy and that Indigenous nations affirm the nature of their own authority. It is also from this contract that the distinguishing characteristics of Indigenous citizenship may be asserted. And the nature of the Indigenous right to participate in public affairs as Indigenous citizens may be worked out.

18

D. O’SULLIVAN

Although, in Australia, the state does not in practice need Indigenous consent to secure its legal standing, it does need it to relinquish its colonial character. If it does not wish to restructure itself to this end, even if incrementally, there is no basis for treaties. The chapter shows that the finding of New Zealand’s Waitangi Tribunal,1 in 2014, that the Treaty of Waitangi was not a M¯aori cession of sovereignty to the British Crown raises important questions about the nature of political authority that may be instructive to the Australian case. In particular, the Crown’s counter-claim that the finding does not set aside the fact of contemporary state sovereignty brings moral urgency to the question of the nature of sovereignty itself and the ways in which M¯aori and the Crown may both exercise authority in their own jurisdictions. It also raises the question of what is the Crown? Is it an ethnically exclusive non-M¯aori entity, or is it the embodiment of the collective political authority that belongs to M¯aori citizens as much as it belongs to others? The chapter also examines the implications of these questions for the nature of citizenship. Chapter 4 explains the Referendum Council’s (2017) recommendation that a Makarrata Commission be established to oversee a process of truth telling. Properly acknowledging Australian colonialism is preliminary to agreements to allow Indigenous and post-settler communities to ‘come together after a struggle’ (p. 1). As well as recognising the other’s political standing, treaties would therefore proceed from a shared understanding of the truth of the colonial relationship. Makarrata would bring substance to the idea of reconciliation, which was raised during the 1990s as an important moral imperative. It was broadly supported by state and territory parliaments as a philosophical concept, but its essential presumptions of sorrow, forgiveness and resolve to correct the consequences of injustice are still to be fully developed. Treaties could advance these aspirations by setting out the terms on which Indigenous nations and the state will engage, and by acknowledging the extant rights of Indigenous nationhood that the state ought not usurp. They would ideally help to

1 The Waitangi Tribunal is an administrative tribunal established in 1975. It may hear claims from any Maori person or group alleging Crown breaches of the Treaty. When it finds that breaches have occurred it may recommend remedies. Though its recommendations are not binding on the Crown, they are sometimes accepted, and they do in various other ways influence public policy-making.

1

INTRODUCTION

19

define the contemporary state as an institution morally worthy of Indigenous acceptance. However, as the chapter shows, these ideals have not been addressed through state attention to historic treaties in Canada, nor necessarily through contemporary treaty making. The reasons are instructive for Australia and provide an important counterpoint to the following chapter’s examination of New Zealand’s Treaty of Waitangi as a social contract. Australia was settled, and Australian government established by force. There was no founding social contract to give moral legitimacy to the authority that the state presumes over and above Indigenous peoples. This is the historical context for the preliminary treaty negotiations taking place in Victoria and the Northern Territory, and considered in other jurisdictions, and which are introduced in this chapter. The chapter also shows how treaties provide an opportunity to think about what a contemporary social contract would entail and how it could simultaneously affirm Indigenous nationhood and Indigenous participation in the sovereign authority of the state. The ways in which these ideals could actually inform political relationships, and their substantial limits given Australia’s colonial present, are discussed in the chapters following Chapter 5’s discussion of the Treaty of Waitangi. The Treaty of Waitangi was an agreement between Indigenous nations and a colonial power. It allowed the British Crown to establish government in New Zealand, but it was not a cession of M¯aori sovereignty over their own affairs. Rangatiratanga, or chieftainship, is the right to manage and retain political authority in relation to matters such as land, culture and natural resources. This right was explicitly affirmed in the Treaty, which also conferred on M¯aori the rights and privileges of British subjects. In 1840, these rights and privileges were limited. However, by 2021, subjecthood has developed into New Zealand citizenship which is a substantive and continually evolving body of political capacities. These include the right to elect and serve in Parliament. The capacity to serve in the executive and judicial branches of government, and to influence the nature and purpose of public institutions, including the cultural values by which they operate. The sovereignty of the Crown, which ought not supersede rangatiratanga, is not legitimately a hegemonic authority exercised over and above M¯aori people. Nor is it an authority that is properly independent of M¯aori political voice. Chapter 5 shows that the Treaty is a social contract suited to the construction of non-colonial political relationships. However, it is true

20

D. O’SULLIVAN

that successive governments have resisted such interpretations, which is why the Treaty remains an instrument of unresolved contest. In a succession of attempts to interpret and simplify the obligations that the Treaty imposes on the Crown, courts and the Waitangi Tribunal have developed Treaty principles. The chapter describes these principles and shows that while they provide interpretive guidance, there is also a view that they diminish the substance of the Treaty which, in turn, shows why the argument for clarifications of the Treaty’s terms that are simpler still, may not in fact assist with the interpretation of an agreement that must be enduring in its overarching commitments and assumptions, but able to respond to developing political contexts. Chapter 6 develops the idea that recognition requires a plural political system. Both treaties and a Voice would contribute to the consideration of plural aspirations and modes of public decision-making in the modern state. It is only through distinctive inclusion that recognition’s substantive possibilities for non-colonial political relationships might be realised. This would mean, for example, that there is a presumption of Indigenous leadership in public policy-making to complement the authority that Indigenous people are entitled to exercise, without state interference, over their own affairs. Plurality’s presumption is that people do not need to exercise their fundamental equality in the same ways. If, indeed, the presumed ways of being equal are imposed by a colonial authority then they do not reflect the social contract described in the previous chapter as the outcome of recognition. Pluralism allows for equality through difference. Chapter 6 explains the right to culture in public institutions as a constituent of the fundamental right to be Indigenous, not just in one’s own nation, but in the public life of the state. Participatory parity is a politics of presence that allows Indigenous people to test and contest the claims of others with arguments that must be heard with the same capacity for influence as the positions of other citizens. Participatory parity is an assumption that influences how political systems and public bureaucracies function, and how they are evaluated, as institutions capable of protecting the freedoms of all and not just some people. The chapter shows that although there have been important concessions to Indigenous inclusion in Australian public policy-making in recent years, it is still not reasonable to conclude that participatory parity is a normative aspiration. Nor is it in New Zealand. But as Chapter 7 shows, there is at least through the Treaty of Waitangi, a political framework for advancing that expectation.

1

INTRODUCTION

21

Chapter 7 outlines developments in Australian approaches to Indigenous participation in policy-making. It shows that while the shift from inclusion to consultation or partnership is significant, it is not the same as recognising that opportunities for Indigenous policy leadership is a requirement of political equality. The chapter discusses a New Zealand Waitangi Tribunal report into allegations that the Crown’s primary healthcare framework breaches the Treaty because it denies participatory parity by inhibiting M¯aori policy leadership. The Tribunal upheld the argument of a Treaty breach and made corrective recommendations. These recommendations are assessed for their contributions to a different kind of policy-making framework where culture counts as a determinant of policy efficacy. The chapter argues that culture is a reasonable prism through which to think about policy problems and policy solutions and that, on this basis, M¯aori leadership, rather than simply consultation or partnership, is required to recognise substantive M¯aori presence. The chapter shows that the overarching political authority that the Treaty affirms provides a framework for thinking about how policy system should work, for whom they should work, and how decisions about their efficacy should be made. It shows that as an adjunct to M¯aori leadership, there ought to be mechanisms for policy accountability to the M¯aori citizenry. It shows that in Australia, as well, there is scope without disruption to prevailing political arrangements, for independent Indigenous funding and purchasing agencies to provide both leadership and accountability to Indigenous citizens. Such an arrangement was recommended by the Waitangi Tribunal and by the Rudd Government’s (2007–2010) Health and Hospitals Reform Commission. These proposals are considered alongside the NUKA System of Care in Canada, which is an Indigenous health system owned, led and accountable to an Indigenous community. These arrangements are not the sum of the Indigenous right to selfdetermination, but they do recognise an Indigenous right to substantive political presence, and provide strong foundations for further consideration of what it means to be a free, equal and culturally distinctive citizen. Finally, Chapter 8 develops this theme of substantive inclusion, through the argument that although guaranteed M¯aori seats in the New Zealand parliament and the proposed Indigenous Voice in Australia are important expressions of Indigenous political presence, it is also at lower levels of the bureaucratic decision-making process that policy decisions affecting Indigenous people’s capacity to be Indigenous inside the state

22

D. O’SULLIVAN

are made. The chapter’s argument is that the capacity for culturally contextualised influence, and for influence that is responsive to colonial context, depends on Indigenous presence wherever policy is made. This is why the right to self-determination cannot be confined to the Indigenous nation alone, and why recognition is effective and durable, only when Indigenous people have reason to believe that the state belongs to them as much as it belongs to anybody else. Unhindered presence is a mark of meaningful recognition and is preliminary to the construction of a non-colonial state. Using that presence to make public institutions work for Indigenous people is an important imperative and the chapter discusses it as an example of what Blackstock (2011) calls moral courage. The courage to contest harmful practices in relation to the care and protection of Indigenous children, for example. Or to make arguments for independence from the state in matters such as schooling, which is discussed in this chapter. Schooling is discussed from the perspective of arguments put to the Waitangi Tribunal in a present case arguing that the Treaty obliges the Crown to provide for M¯aori independence, leadership and accountability to M¯aori values within the publicly funded school system. This discussion shows, again, that the Treaty is a valuable instrument for drawing out the rights that should inform any policy discussion. The argument that the Tribunal was asked to consider was one of M¯aori agency which is, arguably, the ultimate test of the value of any measure of recognition. The chapter discusses ways in which policy is a site of conflicting values and aspirations in Australia, and argues that if equality is a fundamental human right, there must be political space for the collective and individual exercise of independent agency. It is this book’s purpose is to show the limits and possibilities for recognition as a path to agency.

References ABC. (2019). Treaty ‘unfinished business’ for Aboriginal Australians, decades after it was promised. https://www.abc.net.au/news/2019-06-10/barunga-fes tival-marred-by-unfinished-treaty-business/11194706. Accessed 7 November 2019. Blackstock, C. (2011). Wanted: Moral courage in Canadian child welfare. First Peoples Child & Family Review: An Interdisciplinary Journal Honouring the Voices, Perspectives, and Knowledges of First Peoples, 6(2), 35–46.

1

INTRODUCTION

23

Chesterman, J., & Galligan, B. (1997). Citizens without rights: Aborigines and Australian citizenship. Cambridge: Cambridge University Press. Coburn, E. (2016). Review of Glen Coulthard, red skin, white masks: Rejecting the colonial politics of recognition. Theoria, 63, 72–85. Common Grace. (2020). Barunga statement presented to Prime Minister Bob Hawke in 1988. https://www.commongrace.org.au/barunga_statement. Accessed 20 August 2020. Commonwealth of Australia. (2010). Australia’s constitution: With overview and notes by the Australian Government Solicitor. https://www.google.com/ url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjGhvSwgL 3qAhWyxTgGHc9HDjgQFjAAegQIBBAB&url=https%3A%2F%2Fwww.aph. gov.au%2F~%2Fmedia%2F05%2520About%2520Parliament%2F52%2520Sen% 2F523%2520PPP%2F2012_Australian_Constitution.pdf&usg=AOvVaw035 xVKtneNfCWFH4ZExOCV. Accessed 8 October 2018. Coulthard, G. (2014). Red skin, white masks: Rejecting the colonial politics of recognition. Minneapolis, MN: University of Minnesota Press. Elliott, M. (2018). Indigenous resurgence: The drive for renewed engagement and reciprocity in the turn away from the state. Canadian Journal of Political Science, 51(1), 61–81. Fraser, N. (2000). Rethinking recognition. New Left Review, 3, 107–120. Fraser, N. (2003). Rethinking recognition: Overcoming displacement and reification in cultural politics. In B. Hobson (Ed.), Recognition struggles and social movements: Contested identities, agency and power (pp. 21–32). Cambridge: Cambridge University Press. Hall, R. A. (1997). Black diggers: Aborigines and Torres Strait islanders in the Second World War (p. xv). Canberra: Aboriginal Studies Press. Hegel, G. W. F. (1977). The phenomenology of spirit (A. V. Miller, Trans.). Oxford: Clarendon. Hindess, B. (2002). Neo-liberal citizenship. Citizenship Studies, 6(2), 127–143. Howard, J. (2007). Transcript. https://www.abc.net.au/pm/content/2007/ s2057317.htm. Accessed 12 June 2015. Howard, J., in Chesterman, J., & Galligan, B. (1997). Citizens without rights: Aborigines and Australian citizenship. Cambridge: Cambridge University Press. Josefsen, E., Mörkenstam, U., & Saglie, J. (2015). Different institutions within similar states: The Norwegian and Swedish Sámediggis. Ethnopolitics, 14(1), 32–51. Lake, M. (2004). The white man under siege: New histories of race in the nineteenth century and the advent of white Australia. In History Workshop Journal, 2004 (Vols. 1, 58, pp. 41–62). Oxford: Oxford University Press.

24

D. O’SULLIVAN

Lake, M., & Reynolds, H. (2008). Drawing the global colour line: White men’s countries and the question of racial equality. Melbourne: Melbourne University Publishing. Locke, J. (1887). Locke on civil government (2nd ed.). London: George Routledge and Sons. Maaka, R., & Fleras, A. (2005). The politics of indigeneity: Challenging the state in Canada and Aotearoa New Zealand. Dunedin, New Zealand: University of Otago Press. McKenna, M. (2000). First words: A brief history of public debate on a new preamble to the Australian Constitution 1991–99. https://www.aph.gov. au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/ pubs/rp/rp9900/2000RP16. Accessed 13 July 2016. O’Sullivan, D. (2005). Faith politics and reconciliation: Catholicism and the politics of indigeneity. Adelaide: The Australian Theological Forum. O’Sullivan, D. (2014). M¯aori self-determination and a liberal theory of indigeneity. In M. Woons (Ed.), Restoring indigenous self-determination (p. 64). London: E-International Relations. O’Sullivan, D. (2017). Indigeneity: A politics of potential—Australia, Fiji and New Zealand. Bristol: Policy Press. Parliament of Australia. (1983). Two hundred years later …: Report by the Senate Standing Committee on Constitutional and Legal Affairs on the feasibility of a compact or ‘Makarrata’ between the Commonwealth and Aboriginal people. Canberra: Commonwealth of Australia. Parliament of Australia. (2018). Joint Select Committee on constitutional recognition relating to aboriginal and Torres Strait Islander peoples. https://www. aph.gov.au/constitutionalrecognition. Accessed 7 May 2019. Read, P. (2006). Doubts about the treaty: Some reflections on the Aboriginal Treaty Committee. What Good Condition? Reflections on an Australian Aboriginal Treaty 1986–2006, 13, 74. Referendum Council. (2017). Uluru statement from the heart. https://www. referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_ From_The_Heart_0.PDF. Accessed 5 January 2020. Referendum Council. (2020). The council. https://www.referendumcouncil.org. au/council.html. Accessed 5 January 2020. Reynolds, H. (1996). Aboriginal sovereignty: Reflections on race, state, and nation. St. Leonards: Allen & Unwin. Rousseau, J.-J. (1968). The social contract (G. Cole, Trans.). London: EP Dutton & Co. Sydney Morning Herald. (2020). Without treaty, incoming senator can’t feel party of ‘Team Australia’. https://www.smh.com.au/national/without-tre aty-incoming-senator-can-t-feel-part-of-team-australia-20200625-p55649. html. Accessed 20 August 2020.

1

INTRODUCTION

25

Taylor, C. (1992). Multiculturalism and the politics of recognition. Princeton: Princeton University Press. The High Court of Australia. (1992). Mabo and others v. Queensland (No. 2). http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/ 175clr1.html?query=%7Emabo. Accessed 5 January 2020. United Nations. (2007). Universal declaration on the rights of indigenous peoples. New York. Waitangi Tribunal. (2016). The Treaty of Waitangi/Tiriti o Waitangi. https:// waitangitribunal.govt.nz/treaty-of-waitangi/translation-of-te-reo-M¯aoritext/. Accessed 29 March 2017. Williams, G., & Hume, D. (2010). People power: The history and future of the referendum in Australia. Sydney: University of New South Wales Press.

CHAPTER 2

Recognition

2.1

Introduction

Recognition is ideally a theory of political freedom. It is ideally an acknowledgement of one by another (Hegel 1977), grounded in mutual respect for the other’s status as a self-determining person, and member of a self-determining polity. For Indigenous nations, and the state, this status embodies equal authority to work out just terms of association; the terms on which they will respond to the fact of Indigenous prior occupancy. To work out, also, the terms on which they will respond to the fact of ongoing Indigenous exclusion from the social contract, that others have developed, to constitute the modern state. Significant, because it is the social contract from which public sovereignty is developed and justified. Recognition is necessary to create opportunities for political engagement. It thus presumes political institutions and values that allow all people the same opportunities to participate, with the same capacities for influence, over decisions that shape their ability to lead lives that they have reason to value (Sen 1999). Recognition also admits that culture, prior occupancy and the fact of colonisation legitimately shape people’s political aspirations and the ways in which they pursue the political freedoms and liberties that all people are equally entitled to enjoy. From this perspective, recognition is a constituent of a broader liberal political theory that creates distinctive spaces for exploring the nature of human freedom and © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 D. O’Sullivan, Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State, https://doi.org/10.1007/978-981-33-4172-2_2

27

28

D. O’SULLIVAN

the institutions and values that allow its expression. Although this chapter shows that recognition is dismissed by some Indigenous scholars as a theory serving the state’s justification of its colonial character, the chapter’s own perspective is that recognition contributes to liberalism as a theory of inclusive potential. It makes this point by contrasting examples of recognition, and their relevance to self-determination, with examples of misrecognition and its foreclosure of important sites of Indigenous political authority. Ultimately, the chapter shows recognition’s potential to contest the colonial presumptions of the modern state and thus rationalise distinctive and considered spaces of free, autonomous and meaningful political expression. In this way, recognition leads to the consideration of political possibilities beyond egalitarian justice and raises possibilities for reconfiguring the ways in which democracy actually works. Recognition does demand Indigenous concessions to the state, but because the state must reciprocate that recognition, it does not presume that Indigenous people accept a hegemonic relationship. It is not necessarily a panacea for justice, but recognition’s possibilities for how states and Indigenous peoples think about sovereignty and citizenship, for example, makes recognition a site of useful and potentially transformative inquiry that transcends a simple and possibly inconsequential noting of Indigenous prior occupancy in the Commonwealth Constitution.

2.2

Recognition and Self-Determination

Recognition is necessary because its opposite, misrecognition, means that there is no space for political dialogue. Nor is there space to realise self-determination, a political authority that does not exist in isolation but is responsive to and conditioned by the other’s power. Recognition theory is concerned with procedural justice. It is preliminary to self-determination which, in turn, requires re-configuring the ways in which contemporary political systems work. It requires deep understandings of how these systems include and exclude different peoples, of how they prioritise or mediate conflicting claims, and how they conceptualise ‘common’ interests. Recognition is also preliminary to self-determination because it, ideally, allows Indigenous peoples to respond to the political and moral contexts of power. Its capacity to focus on Indigenous people’s equality, as participants in a political relationship, sets recognition theory apart from those conceptions of justice, which think about individual liberty in isolation

2

RECOGNITION

29

from culture and collective aspirations. Recognition theory admits that membership of one’s Indigenous nation is an important constituent of freedom, and therefore a potential constituent of a broader politics of selfdetermination, allowing Indigenous peoples to influence where power is held, by whom and on what authority. Proposing a politics of recognition does not prevent one from admitting that there are, indeed, liberal obstacles to self-determination. It need not discount the ways in which liberal political theory has been used to justify colonial aspirations. However, doubters of liberal theory’s ability to advance Indigenous self-determination might consider that liberalism is not a singular uncontested prescription of political values and practices. Its co-option to support oppressive political objectives may be theoretically defensible, but only from absolute and uncritical readings that deny the cultural context of liberalism’s concern for human freedom. As this book shows, liberalism is a broad political theory and its constituent, recognition theory, can help one to see that ‘Western political theory does tell us how to deal with unjust claims for the restoration of unjust privileges and the inherent right to rule over others. It tells us to reject them’ (Chambers 2003, p. 296). This, in itself, does not mean that western political theory always and automatically dismisses the colonial project, but it does suggest that one need not rule out liberalism’s capacity to contribute to advancing terms of association to advance the possibilities of self-determination. ‘If a theory of justice must be revised when it encounters injustice so as to accommodate that injustice, it is not a theory of justice at all’ (Chambers 2003, p. 296). Liberal theory ought not therefore be dismissed by Indigenous scholars simply because it is potentially constructed to exclude. The United Nations’ Declaration on the Rights of Indigenous Peoples and the Treaty of Waitangi show how state government may be exercised according to principles of non-interference and with the considered inclusion of Indigenous voice in its decision-making processes. The Declaration shows that liberalism is neither a static nor one-dimensional political philosophy (O’Sullivan 2020) and recognition, when it is juxtaposed with misrecognition, shows that there are at least possibilities within liberal theory for thinking about how modern colonial states, like Australia, may conceptualise an alternative political order grounded in human equality. The Declaration’s foundational significance is that beyond codifying and contextualising universal human rights as they apply to Indigenous

30

D. O’SULLIVAN

peoples, it affirms that the right to self-determination is a right that belongs to everybody—to Indigenous people as much as it belongs to anybody else. The Indigenous Australian legal scholar, Megan Davis (2007), participated in the Declaration’s drafting and negotiation through the UN system. She remarks that its adoption was a momentous occasion for Indigenous peoples. It is an important document of developing standards that Aboriginal and Torres Strait Islanders in Australia can use in their day-to-day relationships with all levels of government. It was a long struggle to draft the document and to have it move through the UN hierarchy to adoption by the General Assembly. The UN human rights system confirmed that it is indeed capable of faithfully facilitating substantive standard setting activities for the collective rights of indigenous peoples. [It] symbolises goodwill on the part of states in acknowledging the historical injustice toward indigenous peoples. The Declaration will also go some way to delivering justice to those first peoples whose deprivation of human rights is the very cornerstone of the sovereignty, wealth and power of the most obstructive and argumentative states who voted against the declaration in the General Assembly. (Conclusion: para. 1)

Davis offers an interpretation of hope and aspiration. Recognition’s practical significance is, in turn, a measure of that hope and aspiration, with this book a study in the politics of possibility.

2.3

Recognition or Misrecognition

Recognition’s efficacy does, however, depend on it transcending simple cultural recognition to consider the ways in which political institutions and values influence people’s capacity to participate in public affairs with parity of esteem (Fraser 2003). ‘To be mis-recognised… is not to suffer distorted identity or impaired subjectivity as a result of not being appreciated by others’ (Fraser 2003, p. 30). Rather it is the basis for exclusion from influential participation as an equal in public life. The misrecognition of Indigenous languages illustrates the distinction. Language is an instrument of culture. However, the capacity to use one’s first language in public life is also a determinant of one’s equal access to education, health, justice and political participation. Linguistic acceptance is a measure of political esteem. Conversely, the inability to use one’s language in public affairs is a matter of profound mis-recognition

2

RECOGNITION

31

and is an example of group membership justifying a lesser political status. It is through language that citizenship is denied or reinforced. For Indigenous peoples, the English language has a paradoxical significance. Its dominance is a symbol of colonial hegemony. Yet competence in the language provides access to wider economic and political opportunities. Most importantly, it provides ways of challenging the state and is an essential constituent of the capacity for self-determination. It is ultimately a constituent and determinant of political authority. Recognition, too, is an acknowledgement of freedom through political equality. However, freedom is not an abstract concept. It can only make sense in political and cultural context. Freedom is also a constituent of economic capacities. The colonial project relies heavily on undermining these capacities so, as Fraser (2003) argues, overcoming both cultural and economic injustices are important to substantive recognition. They are equally important to realising the Indigenous person’s capacities for citizenship. If ‘a hierarchy of values is so constituted as to downgrade individual forms of life and manners of belief as inferior or deficient then it robs the subjects in question of every opportunity to attribute social value to their own abilities’ (Honneth 1995, p. 134). For liberal political theory, this means being able to admit the practical implications of Taylor’s (1994) argument that: our identity is partly shaped by recognition or its absence, often by the mis recognition of others, and so a person or a group of people can suffer real damage, real distortion, if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves. Nonrecognition or misrecognition can inflict harm, can be a form of oppression, imprisoning someone in a false, distorted, and reduced mode of being. (p. 25)

Misrecognition is colonialism’s underlying and essential characteristic. It is therefore an ‘institutionalised relation of subordination and a violation of justice’ (Fraser 2003, p. 29), where people do not enjoy the same opportunities to influence the societies in which they live through, for example, helping to determine the values under which public institutions operate or the policy objectives that they pursue. Politically, misrecognition means that a citizen ‘is not being courted the same degree of moral responsibility as other members of society’ (Honneth 1995, p. 133). Misrecognition allows colonialism to remain an oppressive political force.

32

D. O’SULLIVAN

Its original injustices continue to hold influence and its capacities to create new ones remains. However, its nature is evolving and its presumptions are open to democratic contest. There is an important relationship between political opportunities and the values of the prevailing political system. For example, the English political presumptions that justified colonialism’s earliest expression stand in marked contrast with the possibilities of contemporary liberal democracy. Misrecognition occurs when public sovereignty is positioned as an authority over and above Indigenous peoples, with colonialism thus entrenched and further positioning Indigenous people beyond the public and beyond the political. However, differentiated liberal citizenship allows substantive recognition because it repositions sovereignty as a public authority that belongs equally to all citizens on the one hand, and as a collective authority that belongs to Indigenous nations in relation to their own affairs, on the other. The Indigenous person is equally a shareholder in the sovereign authority of the state and the Indigenous nation, a point which is developed throughout this book with reference to both the Treaty of Waitangi and the Uluru Statement from the Heart . It is a point which, for Davis (2014), requires significant reform to the workings of public institutions and presupposes substantive not symbolic recognition: I am a fully-fledged supporter of recognition but what I do not want is mob backed into a corner where they feel obliged to accept another political confection [i.e. symbolic recognition]. If that were to occur, there would be no revisiting of constitutional reform. We would be the one State that had gone the other way, successfully executing recognition in a way that the State has never had to give up an inch of space in its public institutions, in its public law to the recognition of first peoples, except for a mere nod or, as Charles Perkins so presciently captured, ‘the crumbs that fall off the White Australian tables’. (Conclusion, para. 13)

The state is here to stay, but so are Indigenous peoples as distinct polities and as citizens who, if they so wish, have the right to influence the collective values and aspirations of the state. Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State. (UN 2007, article 5)

2

RECOGNITION

33

Or as Pearson put it with respect to a constitutionally enshrined Voice: ‘We need a constitutional voice, a position from which we can never be shed’ (Pearson, cited in Davidson 2018, para. 9). From the Declaration’s presumption, the state may be transformed into a postcolonial entity able to contest misrecognition. And also, able to contest those forms of political organisation that limit Indigenous participation in public affairs and preclude their participation with reference to group values. Contesting Indigenous exclusion is enabled in New Zealand, for example, by distinctive M¯aori representation in parliament. Substantive inclusion is a reasonably expected outcome of the constitutionally enshrined Voice to parliament that is proposed in Australia. The Voice would, in simple though potentially far-reaching terms, be an example of participation through what Axelby and Wanganeen (2017) call bringing ‘a bit of blackness in[to] this country’s white document [i.e. the Constitution]’ (para. 8)? The implicit argument in the Voice proposal is that recognition means that participation should not depend on assimilation into another culture and its political norms. Misrecognition is expressed through a hierarchy of social and cultural values and expectations, where cultural traits are stereotyped as marks of inferiority. Externally constructed deficiencies are then used to reinforce and justify further misrecognition. This is why responding to institutions, practices and values that impede recognition is important. Some liberals, however, object that recognising Indigenous distinctiveness compromises the principle of neutrality in the administration of public institutions. On the other hand, the argument that recognition compromises neutrality can only hold if public institutions are demonstrably acultural. If public institutions can be constructed without reference to the cultural values of those who design them and of those who work in them. Political equality is more likely to be achieved and political arrangements are more likely to admit the further liberal objectives of freedom for all and not just some citizens if plurality is accepted in the design and operations of public institutions. If an Indigenous person working in a department of state can go to work as Indigenous. If an Indigenous child can go to school and be Indigenous, and if an Indigenous teacher can go to school and work as Indigenous. Developing people’s capacity to go to school and achieve as M¯aori, which is the point of New Zealand’s Te Kotahitanga teacher professional development programme, for example (Bishop et al. 2010). Te Kotahitanga presumes that culture counts in schooling (Bishop et al. 2010). Self-determination, through leadership

34

D. O’SULLIVAN

in public education, may promote strong cultural guards against conformity to externally constructed stereotypical deficits. Though it is political rather than cultural misrecognition that explains and justifies colonialism, Te Kotahitanga shows that there is a strong relationship between the two. It shows how asserting rights to culture are inherently political acts for Indigenous people. Subsequent chapters show the importance of Indigenous policy leadership in domains such as education, as an expression of the right to authority over their own affairs, and as an expression of the citizen’s right to influence how they actually experience public institutions. The Te Kotahitanga programme found that cultural inequality in the school, through misrecognition, was a significant obstacle to selfdetermination: ‘members of disesteemed groups internalize negative selfimages and are prevented from developing a healthy cultural identity of their own’ (Fraser 2000, p. 109). The alternative, which recognition may help to achieve, is a liberal equality, where group members are ‘full partners in social interaction’ (p. 113). This interpretation of liberal possibility means that, as culture bearing citizens, Indigenous persons have the right to participate in schooling with the same social status as any other member of the community. They may attend school as the ‘peer in social life’ of other citizens (Fraser 2000, p. 113). Recognition is then a theory of social and political status. To view recognition as a matter of status means examining institutionalized patterns of cultural value for their effects on the relative standing of social actors as peers, capable of participating on a par with one another in social life, then we can speak of reciprocal recognition and status equality. When, in contrast, they constitute some actors as inferior, excluded, wholly other, or simply invisible - in other words, as less than full partners in social interaction - then we can speak of misrecognition and status subordination. (Fraser 2000, p. 113)

Misrecognition is thus significantly more far-reaching than the denial of culture. It is the denial of a broad and more significant set of political capacities which was, in fact, colonialism’s original misrecognition—terra nullius which was, in Australia, the denial of Indigenous political organisation. The misrecognition of an ordered political community meant that the continent could be declared unoccupied and claimed as a sovereign possession of the British Crown. The colonial presumption that Australia

2

RECOGNITION

35

belonged to no one, retains political significance, even though it was dismissed by the High Court in 1992 as an important step towards recognition. Justice Brennan found that: It is contrary both to international standards and to the fundamental values of our common law to entrench a discrimination rule which, because of the supposed position on the scale of social organisation of the Indigenous inhabitants of a said colony, denies them a right to occupy their traditional lands. (The High Court of Australia 1992, p. 42)

Yet, colonial processes continue to affront Indigenous belonging by marginalising belief systems, access to land and culture, disrupting language and Indigenous family units. The marginalisation of people means that their ways of knowing and understanding what it means to be human are marginalised from the policy process. Indigenising the bureaucracy is a responsive political strategy, which treaties and a Voice may facilitate, and which is discussed in Chapter 7. Recognition through self-determination requires a political solution to what Moreton-Robinson (2015) calls an Indigenous ‘state of homelessness’ which occurs ‘because our ontological relationship to the land, which is the way we hold title, is incommensurable with… [the nationstate’s] exclusive claims to sovereignty’ (p. 16). The political solution begins with a reappraisal of sovereignty and its exclusive claim by the state. In particular because, through the notion of exclusivity: ‘we… have in effect become trespassers in our own land until we prove our native title’ (Moreton-Robinson 2015, p. 16). In Chapter 3, this book introduces its account of public sovereignty as an authority in which all citizens share and to which no one is subordinate by virtue of their indigeneity. The chapter uses that conception of sovereignty as a collective public authority to consider how political systems might work inclusively and responsively, for recognition acquires meaningful substance only at the point where Indigenous citizens have reason to admit that the state belongs to them, and reflects their values, as much as it belongs and reflects the values of anybody else. Moreton-Robinson’s (2015) reference to native title is to the Native Title Act 1993 (Cth), which responded to the High Court finding that native title could co-exist with pastoral leases. The Court found that leases did not, in themselves, extinguish an Indigenous people’s right to use their traditional lands (The High Court of Australia 1996). The Wik case

36

D. O’SULLIVAN

was a turning point in Indigenous land rights, but it did not change the wider Indigenous affairs policy narrative in sustainable and durable ways. Indigenous people still remain on the social and political periphery. Land rights are still subject to extinguishment. They are politically vulnerable and subject to extinguishment when the state chooses to construct the Indigenous interest as incompatible with the public interest (O’Sullivan 2019). The same legal presumption holds in Canada. The right to land is recognised, but only in so far as that right does not interfere with nonIndigenous economic interests (Supreme Court of Canada 1997). Native title contributes to the recognition of ‘ancien Australia’ (Australian Institute of Aboriginal and Torres Strait Islander Studies 2015, para. 29), but only in limited fashion because as Pearson put it ‘colloquially’: the whitefellas get to keep everything they have accumulated, the blackfellas should now belatedly be entitled to whatever is left over. The imperative flowing from the Mabo decision in 1992 was the swiftest, unambiguous and ungrudging delivery of that remainder to the indigenous peoples entitled to that belated recognition. In some of our states we have yet to get one hectare, we are yet to get one acre, we are yet to get one square metre of land under a native title determination after 10 years. (Cape York Partnership 2003)

Native title is nevertheless important because it recognises that the Australian continent was not terra nullius when Britain claimed it. But it is a limited form of recognition, because it makes the liberal right to private property a lesser right for Indigenous peoples. The right to property is foundational to the liberal conception of human equality. However, the lessor citizenship that Australian public policy asserts for Indigenous people is clear in this case, and affirms Grant’s (2016) observation that ‘we lived in Australia, and Australia was for other people’ (A cage in search of a bird, para. 3). Grant (2016) was referring to his grandfather’s ‘personal journey in the migration from mission to town a distance of mere miles, but an epochal trek’ (A cage in search of a bird para. 2), which three generations later is still not the imagined trek of opportunity for many Indigenous peoples. Australia is ‘for other people’ when Indigenous political presence is denied, and when the political equality that logically follows recognition is denied. In contrast, inclusivity requires a form of recognition that examines relationships between presumed cultural deficiencies and political

2

RECOGNITION

37

standing. This is a political examination, admitting that for Indigenous peoples’, misrecognition may mean denying a nation’s right to exist as a group. Such denial is significant because the group is the place where identity is formed and where identity maintains its meaning.

2.4

Recognition: Beyond Egalitarian Justice

Recognition is not simply the acceptance of each person as equal. The recognition of their values and rights to independent and self-defined forms of decision-making are also important. Recognition’s political significance cannot be confined to parity of esteem within the state because the Indigenous nation or iwi can also be transformative sites of Indigenous authority. The Indigenous nation is itself, an assertion of indigeneity, not simply a statement of struggle for ‘the recognition of difference… charged with emancipatory promise’ (Fraser 2000, p. 107). Just as indigeneity cannot be conflated with ethnic minority politics, its theoretical rationale is not the deliberative concerns of the poor. Waldron’s (2004) ‘supersession thesis’, for example, demonstrates the limits of egalitarian justice and, in turn, shows why some deeper kind of recognition is preliminary to self-determination. The supersession thesis presumes that the full extension of liberal citizenship rights to Indigenous people, on its own, allows the consequences of past injustices to be set aside. The argument is that no matter how harmful an act of colonial aggression, its consequences can be corrected, or superseded, by people acting reasonably towards one another in the present. ‘Claims about historical injustice predicated on the status quo ante may be superseded by a determination to distribute the resources of the world in a way that is fair to all of its existing inhabitants’ (Waldron 2004, p. 71). However, such an account may make ‘belonging’ ‘inextricably tied to white possession’ (Moreton-Robinson 2003, p. 137) with ‘whiteness’ the ‘definitive marker of citizenship’ (Moreton-Robinson 2004, p. 79), and definitive point of comparison in the description of Indigenous well-being. The supersession thesis’ failure to recognise colonialism as an on-going phenomenon shows that, as Moreton-Robinson (2015) argues elsewhere: ‘The politics of… silencing is enabled by the power of Western knowledge and its ability to be the definitive measure of what it means to be human and what does and what does not constitute knowledge’ (p. 12). In other words, mis-recognition of a colonised society’s history, culture and prevailing political values, and their relationships

38

D. O’SULLIVAN

with the fair and reasonable distribution of public power and authority, is a mis-recognition of distinctive Indigenous humanity. Ivison et al. (2000) provide an alternative perspective: ‘one of the interesting consequences of the encounter between liberalism and its colonial past and present might be a more context-sensitive and multilayered approach to questions of justice, identity, democracy and sovereignty. The result would be a political theory open to ‘new modes of cultural and political belonging’ (p. 21) to address inconsistencies between collective Indigenous rights and the egalitarian distribution of public resources. The important distinction is that while egalitarian redistribution may be a constituent of recognition and may contribute to the self-determination of Indigenous persons as citizens of the state, it does not contribute to their self-determination as distinctively Indigenous citizens; significant because distinctiveness is preliminary to parity of esteem which requires attention to both colonial context and attention to Indigenous peoples’ post-colonial aspirations. Recognition suggests that comprehensive and integrated theories of justice are required to respond to the original causes of the maldistribution of political authority. In this context, one cannot accept that liberal political theory is inherently and unavoidably colonial, that it depends on principles that can never meet Indigenous conceptions of justice; or that it forecloses opportunities for Indigenous self-determination. Self-determination demonstrates liberalism’s internal capacity to transcend the limits that more restrictive and exclusive theoretical accounts may impose. There is, after all, a liberal right to be Indigenous, even though its meaning is not always well understood beyond Indigenous societies and the proposition is subject to racially motivated objections. Nevertheless, liberalism does at least mean that ‘people are not required to live by values they can’t abide, nor forbidden to live by values they cherish’ (Kukathas 1992, p. 37). This presumption is part of what it means, in practical terms, to recognise prior occupancy and forms of political organisation, so that people may exercise self-determination; working out for themselves how their cultures are expressed, how their preferred decision-making processes are used, and the kinds of relationships they pursue with others. And especially, part of what it means for people to determine the conditions that would make them willing to admit that the lives that they lead are truly compatible with their understandings of the good life. Recognition is not therefore a minimalist gift of public benevolence concerned only with cultural claims. While culture is a ‘legitimate…

2

RECOGNITION

39

terrain of struggle’ for recognition (Fraser 2000, p. 109), indigeneity takes a more expansive view of what counts as fair and reasonable political aspirations. The recognition that indigeneity asserts is primarily political; focussed on the right to exist on terms that do not require the approval of the settler state. Approval entrenches the colonial relationship. On the other hand, the state is here to stay and recognising the terms on which the state could make itself legitimate is an important moral imperative in any transition from a colonial to non-colonial state. Recognition must, instead, be distinguished by the state accepting an inherent and enduring Indigenous political authority, as the price of its own legitimacy. Yet, there are also Indigenous views that the state may never be legitimate. That there are no circumstances in which the state may genuinely be non-colonial, and therefore morally capable of receiving Indigenous recognition (Coulthard 2014). Recognition can, after all, only be meaningful if it is the mutual recognition of equals (Hegel 1977), which raises important philosophical and pragmatic questions for Indigenous peoples who may not, in fact, wish to recognise the state. They may not wish to seek equality with the state, but distinctiveness. From another perspective, colonialism may be so far advanced as to make recognition impossible. In Australia, for example, there are people to recognise but, by their extinction, not always languages to recognise. Indigenous people are unlikely to want to recognise the state as a colonial power, for that is to concede the right to self-determination. There is no scope for recognition from a state giving itself an ethnically exclusive non-Indigenous character and assuming incontestable authority over Indigenous lives. There must be scope for Indigenous voices as Indigenous within the state. What, then, does it take for the state to surrender its colonial authority to recognise diverse and dispersed forms of public sovereignty? Can recognition theory respond to Coulthard’s (2014) argument that recognition is a state inspired concept ‘reproduc[ing] the very configurations of colonialist, racist, patriarchal state power that Indigenous peoples demands for recognition have historically sought to transcend’ (p. 3)? Responding to these questions are among this book’s recurrent themes, and as the book shows, it is only if they may be answered affirmatively that treaties and a Voice, in Australia, will be able to support the re-framing of public sovereignty that Indigenous self-determination requires.

40

D. O’SULLIVAN

2.5 Recognition: Recognising the State, Resurgence and Recognising the Self? Coulthard (2014) argues that the mutual recognition of equals is unachievable so Indigenous groups ought, instead, be concerned only with self-recognition and that instead of ushering in an era of peaceful coexistence grounded on the ideal of reciprocity or mutual recognition, the politics of recognition in its contemporary liberal form promise to reproduce the very configurations of colonialist, racist, patriarchal state power that Indigenous peoples’ demands for recognition have historically sought to transcend. (Coulthard 2014, p. 3)

It is for this reason that Coulthard (2014) warns against Indigenous people recognising the state by seeking its approval for their own aspirations. He argues, for example, that asking the state to remove sexist provisions from the Canadian Indian Act 1876 recognised the state as judge over Indigenous women in their own communities. It gave the state authority to define Indigenous. In contrast, M¯aori define themselves with reference to whakapapa or ancestry. One is M¯aori if one has a M¯aori parent, while in Australia the state presumes the authority to define an Indigenous person in various legislative and other instruments, though it does concede that such an identity is the product of Indigenous knowledge and value systems, and the widely accepted public definition of an Indigenous person is ‘a person of Aboriginal or Torres Strait Islander descent; who identifies as being of Aboriginal or Torres Strait Islander origin; and who is accepted as such by the community with which the person associates’ (Australian Bureau of Statistics, Nominal definition 2014, para. 1). This does, however, provide for the severance of a person of Indigenous descent from their ancestral connections in a way that whakapapa as an objective truth cannot entertain. Although in Australia, indigeneity is traditionally also a connection to place, the Native Title Act 1993s (Cth) requirement that a native title claim can be made only over territory with which there is an unbroken connection is a profound Act of misrecognition. The number of Indigenous persons unable to identify an unbroken familial connection to tribal land is precisely the outcome of state aggression in alienating land in the first instance. The broken connection is not an Indigenous choice and, in this

2

RECOGNITION

41

respect, the Native Title Act simply re-states an earlier misrecognition. Under the Native Title Act Indigenous people ‘belong nowhere unless they can prove their title according to the criteria established by the state’ (Moreton-Robinson 2015, p. 16). The requirement to demonstrate a continuous association with the land means that some Indigenous people ‘do not belong anywhere’ but ‘within a discourse of citizenship that seeks to erase dispossession through privileging white sameness over Indigenous difference’ (Moreton-Robinson 2015, p. 16). While this is in many respects a powerful and accurate description of modern-day colonialism the description is, as this book shows, one that is subject to constant Indigenous challenge. The ease with which native title may be extinguished was noted earlier in this chapter. It may give international support to Coulthard’s (2014) argument that recognition ought to be less oriented around attaining legal and political recognition by the state, and more about Indigenous peoples empowering themselves through cultural practices of individual and collective self-fashioning and that seek to prefigure radical alternatives to the structured and systemic dimensions of colonial power. (p. 18)

From this perspective, post colonialism can only be realised beyond and in isolation from the state. It is self-recognition alone that matters, and it is for this reason that if one must assume that recognition is the state’s to give as it thinks fit, there is no basis for Indigenous peoples to reciprocate by recognising the moral legitimacy of the state. The ultimate test for recognition may, then, be weather Indigenous peoples are able to find positive and sustainable reasons for extending that recognition. This test presupposes that equal and distinctive capacity for political participation is an essential element of citizenship: ‘The distribution of material resources must be such as to ensure participants’ independence and “voice”’ (Fraser 2003, p. 12). Independence and voice assume that political institutions are founded on values of inclusion. Coulthard (2014) argues that the ‘liberal recognition paradigm’ (p. 51) is colonialism’s most important contemporary enabler. As an alternative to recognition, he proposes that traditional Indigenous philosophies should be used to create a ‘totally new set of social, cultural and economic relations ’ (p. 148). He argues that these relations are incompatible with liberal and capitalist political values. This is because, Indigenous

42

D. O’SULLIVAN

resurgence theorists argue, recognition is ‘structurally committed to dispossessing Indigenous peoples of their lands and self-determining authority’ and because it ‘operates to erode the very basis of Indigenous resistance by co-opting individuals and communities into forms of life that comport with the colonial order’ (pp. 65–66). Alfred (2009) proposes that, instead: The non-Indigenous will be shown a new path and offered the chance to join in a renewed relationship between the peoples and places of this land, which we occupy together. I want to provoke. To cause reflection. To motivate people to creatively confront the social and spiritual forces that are preventing us from overcoming the divisive and painful legacies of our shared history as Imperial subjects. (p. 35)

Resurgence is a central theme in contemporary Canadian Indigenous politics. It is based on the argument that colonialism is concerned with the elimination, rather than simply the subjugation of Indigenous societies. Indigenous resurgence is a response grounded in a form of selfdetermination that is independent from the Canadian state. Resurgence is rationalised by the belief that colonialism’s focus on the elimination of Indigenous societies remains, in spite of the discourses of reconciliation, that are also prevalent in contemporary Canadian politics (Elliott 2018). Indigenous resurgence maintains that Indigenous people ought to ‘turn away’ from what is the ‘hostile environment’ of the state and develop their own programmes of ‘rejuvenation’ (Elliott 2018, p. 61). An alternative perspective is that ‘turning away’ discounts the possibility that democracy can work differently and that it can work fairly and more effectively for Indigenous peoples. It is an oversimplification to argue that liberal democracy per se does not work for Indigenous peoples simply because liberalism is not an Indigenous paradigm. There is a strong moral argument for the political system of the post-settler state, whatever that system may be, to work for Indigenous people. The fact that liberal democracy is not an Indigenous institution does not mean that Indigenous peoples should have no expectation that it will respond to their interests with the same effectiveness that it responds to the needs of other citizens. Resurgence is also concerned to ‘foster ongoing engagements with settler society that might help to unsettle, and eventually remove, obstacles to reciprocal dialogue and the renewal of relationships’ (Elliott 2018, p. 62). These efforts are

2

RECOGNITION

43

more useful to Indigenous self-determination than ‘attempts to further modify the conditions of colonialism’ (Elliott 2018, p. 62) and occur as a ‘a reciprocal politics of decolonisation’ (p. 63). They are also useful because they accept that self-recognition is necessarily prior to mutual recognition, one need not make a choice between the two. Searching within liberal political theory for more just terms of association or for space for the expression of Indigenous agency, does not mean that one cannot also look outside that theoretical framework. On in its own terms, liberalism does not have to consider political values such as those that Jones (2014) positions as requirements of a just political order for M¯aori. But nor does liberalism, on its own account, have to dismiss these values which Jones argues are the basis of M¯aori constitutionalism: Whanaungatanga – the centrality of relationships to M¯aori life Manaakitanga – nurturing relationships, looking after people, and being very careful how others are treated Mana – the importance of spirituality, sanctioned authority and the limits on M¯aori leadership. Tapu/noa – respect for the spiritual character of all things Utu – the principle of balance and reciprocity. (p. 191)

Nevertheless, resurgence theory’s antipathy towards the state is strong. It is a well-considered response to the colonial project. Its immediate logic is to reject the state’s capacity, or inclination, to contribute to Indigenous self-determination in their own nations and over their own affairs. Resurgence theorists argue that ‘it is colonialism that brings rigidity to Indigenous social and cultural life, and a crucial part of loosening its grip must be to reinstate norms of self-criticism and cultural fluidity at the core of Indigenous social existences’ (Elliott 2018, p. 69). However, if resurgence is to ‘transform the colonial power relations that have come to dominate our present’ (Coulthard 2014, p. 157), there is an argument for Indigenous people to be present wherever decisions are made. Coburn (2016) argues that, instead, Coulthard (2014) ‘may be insisting on the hopeful possibility of revolutionary change, without dwelling on the crushing opposition this would face, because this is a political necessity for Indigenous survival’ (p. 81). If this bleak view of political possibility is not to become prophetic one must find paths to selfrecognition that allow alliances of common aspiration with political actors, and intellectual alliances with theories of justice, that are able to accept

44

D. O’SULLIVAN

relative and relational self-determination rather than the isolationist model that Coulthard (2014) proposes. With its illiberal foundation, one must be able to reject Elliott’s (2018) argument that ‘recognition’s root function is to manufacture a more robust legitimation—moral and legal—of the state’s claims to sovereignty’ (Elliott 2018, p. 66). And also reject the argument that recognition undermines resistance (Elliott 2018) because it forecloses the possibility that self-determination of any meaningful kind is possible within the broader liberal paradigm and that: ‘Since the Other was reluctant to recognise me, there was only one answer: to make myself known’ (Coulthard 2014, p. 141). Making oneself known is, in fact, a pre-condition for recognition. If one is not known, what is the other to recognise? Coburn’s (2016) argument is that ‘the recognition approach appears to resolve the contemporary colonial conundrum: the need to secure Indigenous consent for persistent colonialism and land expropriation, in a context in which brute force is now acceptable only as a ‘last resort’ (p. 80). From this perspective, recognition is inherently unequal and involves just one moral concession on the state’s part; the rejection of violence, but the retention and perhaps strengthening of other forms of colonial coercion. Therefore, Coburn (2016) continues: ‘Other ideologies will be mobilised as ‘recognition’ politics lose their hegemonic force, but this is not an outcome of a straightforward battle of ideas but part of a much larger social struggle in which ideas play one part’ (p. 80). However, if military force is not a morally acceptable colonial strategy for the state, and not a pragmatically possible response for Indigenous peoples, one has recourse only to intellectual coercion or reason as tools of influence and resistance. It is therefore instructive to examine, as this book does, the scope that other Indigenous political actors and scholars find within the liberal paradigm for very different relationships to those that Coulthard (2014) finds hostile to Indigenous self-determination.

2.6

Recognising a Non-colonial Liberal State

The liberal recognition paradigm does not necessarily preclude the selfrecognition that Coulthard (2014) privileges. There are models of Indigenous self-determination that are both more hopeful and philosophically open to a relative and relational politics than the argument that ‘for Indigenous nations to live, capitalism must die. And for capitalism to die,

2

RECOGNITION

45

we must actively participate in the construction of Indigenous alternatives to it’ (Coulthard 2014, p. 173). Self-recognition may instead include considered engagement in local and international economies admitting that self-determination is not isolation. The presumption of a choice between assimilation and isolated self-determination mischaracterises the nature of political power. It also mischaracterises the scope of political possibilities—the possibility that one might be an Indigenous political actor in more than one place, according to more than one method of participation and for the same or different purposes, depending on possibilities and aspirations. Self-determination is the exercise of authority over the terms of the relationships that one chooses to pursue with others. The ability to work out for one’s self the purpose and nature of one’s economic engagement is an essential mark of what it means to be a self-determining people. In New Zealand, the Treaty of Waitangi was an instrument of self-recognition. Indigenous self-determination is further advanced in New Zealand than it is in Canada, partly because the mutual recognition implicit in the Treaty of Waitangi, constrains Crown sovereignty in relation to iwi and other M¯aori entities. Crown sovereignty is, at least intended under the Treaty, to be an inclusive construct in which M¯aori participate as citizens. These constraints prevent the state from exercising unfettered hegemony, even though it remains true that these constrains are not as significant as many M¯aori argue are just (Independent Working Group on Constitutional Transformation 2016). Nor are they as significant as international instruments like the United Nations’ Declaration on the Rights of Indigenous Peoples imagine, but they are important nonetheless and the Treaty of Waitangi may be an instructive point of comparison as Australian treaty negotiators consider the limits and possibilities of treaties as instruments of reconciliation in their own contexts. Like Indigenous Australian aspirations for constitutionally entrenched political voice, the Declaration brings much greater substance to the concept of recognition than the state’s vague proposition that the Commonwealth Constitution ought to recognise Indigenous Australia in some, as yet, undefined way. It is, however, significant that Indigenous responses consistently show that recognition does not require Indigenous peoples to admit the colonial state as it is presently structured to exclude. Although recognition is contested, even vehemently opposed by

46

D. O’SULLIVAN

some Indigenous people, it does provide an intellectual framework and justification for expecting the state to exist on different and non-colonial terms. It is only if it fails in this respect that one can say with authority that recognition theory is inadequate. This means that contemplating the capacities and possibilities for Indigenous self-determination, that democratic theory makes available, is an essential and unavoidable requirement of justice. Reforming the ways in which democratic institutions operate and what they enable and what they foreclose in terms of the Indigenous right to self-determination legitimately occurs inside the state. But this is a complement not an alternative to the possibilities for self-determination outside the state. Recognition’s challenge to colonial hegemony affirms MoretonRobinson’s (2015) observation that: ‘it is ‘hard work’ maintaining colonial states as ‘white possessions’ (p. xi). Recognition exposes the colonial project’s insecure moral foundations. A concerted political focus is required to maintain its hegemonic character. Colonialism’s ‘possessive logics’ of ‘white sovereignty’ are well advanced as Moreton-Robinson (2015, p. xi) suggests. However, there are alternative logics and political forces fracturing that sovereignty, as the internal contradictions between possession and liberal democracy, and between hegemony and self-determination intersect. Indigenous dissatisfaction with the colonial order is presented in new and evolving ways. Indigenous politics remains assertive, and often effective in their challenges to ‘white possessive logics [which] are operationalized within discourses to circulate… meanings about ownership of the nation, as part of commonsense knowledge, decision-making, and socially produced conventions’ (Moreton-Robinson 2015). These challenges are possible because Indigenous nations are ‘here to stay’ (Supreme Court of Canada 1997, para. 186) retaining their own conceptions of nationhood, knowledge, decision-making and the production of conventions. These conceptions are constituents of what it means to be self-determining peoples inside a liberal state whose colonial foundations are challenged by internal contradictions within the liberal paradigm itself. The social reproduction of whiteness occurs to diminish indigeneity as culturally worthy. The juxtaposition of Indigenous vis-a-vis ‘mainstream’ public services, or the measurement of egalitarian justice through statistically measurable gaps in policy outcomes, as their sole and state

2

RECOGNITION

47

determined purpose, reinforces whiteness as a measure of desirability. By extension, they reinforce whiteness as a normative political status and the place where political authority is found. Moreton-Robinson (2015) suggests that there is a colonial need to ‘reproduce whiteness’ (p. 6). Diminishing that need requires reconsideration of the nature of the state; what it is, what it is for and most importantly who, in politically meaningful terms, are its members. Moreton-Robinson (2015) is correct that there are ‘social, political, and legal impositions that define us, the original owners, as not belonging’ and as ‘out of place’ (p. 4). This is why contesting these impositions, by saying that ‘we belong’ wherever public policy is made, is an urgent political imperative for Indigenous self-determination, and may support the cultural assumptions implicit in the remark that: Our story is in the land… it is written in those sacred places. My children will look after those places, that’s the law. Dreaming place… you can’t change it no matter who you are. No matter your rich man, no matter you King. You can’t change it…. Rock stays, earth stays. I die and put my bones in cave or earth… all the same. My spirit has gone back to my country. (Big Bill Neidjie, Kakadu Man, cited in Moreton-Robinson 2015, p. 3)

However, for some Indigenous people colonisation has meant physical dislocation and perhaps not even an awareness of one’s country or people. Yet, the right to self-determination is not diminished, and it remains that ‘ontological belonging, is omnipresent, and continues to unsettle nonIndigenous belonging based on further illegal dispossession’ (MoretonRobinson 2015, p. 4). In this way, one makes oneself known.

2.7

Conclusion

Recognition between states and Indigenous peoples is inevitably unequal and does not guarantee the political transformations that Coulthard (2014) and other first nations scholars think just. Their argument is that the state is incapable of re-inventing itself in non-colonial form. That the moral and practical obstacles to self-determination are so entrenched that recognition can do no more than acknowledge a state desire for

48

D. O’SULLIVAN

moral legitimacy, without offering Indigenous peoples’ recognition of equivalent substance. This bleak critique and its accompanying theory of Indigenous resurgence may certainly be aligned with broader objectives of self-determination. However, there is only so much meaningful political authority to be enjoyed in isolation, suggesting that one should look more deeply into the prospects that might exist for Indigenous people to create for themselves a distinctive space within the liberal state to complement the possibilities for resurgence within the Indigenous nation. Mutual recognition requires that the scope of Indigenous sovereignty is examined for its potential to provide a framework for thinking about the limits to the sovereign claims of the state, which is examined in the next chapter, to show that the isolationist self-determination that Coulthard (2014) proposes is unlikely to be as effective as measures flowing from Indigenous agency in and through their own nations in consort with the complex and overlapping world of liberal democratic citizenship. Indigenous political authority cannot be separated or isolated to avoid engagement with the state. Recognition does not guarantee justice, but recognising that the other is legitimately present, is preliminary to working out how one group’s political authority is expressed vis-à-vis another’s. If one is present, sharing in the political affairs of the state while claiming a complementary and enduring Indigenous nationhood, one’s sovereignty and self-recognition have been asserted and the foundations for self-determination established. Although there are sharp disagreements over the scope and character of what is to be recognised, the alternative to recognition is simply misrecognition which the state may use to assert itself as a colonial entity. Recognition, therefore, remains a useful framework for thinking about how the possibilities for self-determination might be explored, through measures such as treaties and a Voice, and for considering the scope that exists for non-colonial political relationships between Indigenous peoples and the state.

References Alfred, T. (2009). Wasáse: Indigenous pathways of action and freedom. North York: University of Toronto Press. Australian Bureau of Statistics. (2014). Indigenous status standard 2014, Version 1.5. https://www.abs.gov.au/ausstats/[email protected]/Lookup/1200.0.55. 008main+features32014,%20Version%201.5. Accessed 20 August 2020.

2

RECOGNITION

49

Australian Institute of Aboriginal and Torres Strait Islander Studies. (2015). Noel Pearson’s keynote address at National Native Title Conference 2015. https://aiatsis.gov.au/gallery/video/noel-pearsons-keynote-add ress-national-native-title-conference-2015. Accessed 20 August 2020. Axelby, C., & Wanganeen, K. (2017). Constitutional recognition must make Indigenous lives better: Otherwise what’s the point? The Guardian. https:// www.theguardian.com/commentisfree/2017/apr/20/constitutional-recogn ition-must-make-Indigenous-lives-better-otherwise-whats-the-point. Accessed 20 April 2017. Bishop, R., O’Sullivan, D., & Berryman, M. (2010). Scaling up education reform: Addressing the politics of disparity. Wellington: NZCER Press. Cape York Partnership. (2003). Sir Ninian Stephen annual lecture, 2003: Noel Pearson. https://capeyorkpartnership.org.au/speeches/sir-ninian-ste phen-annual-lecture-2003-noel-pearson/. Accessed 20 August 2020. Chambers, C. (2003). Nation-building, neutrality and ethnocultural justice: Kymlicka’s ‘Liberal Pluralism’. Ethnicities, 3(3), 295–319. Coburn, E. (2016). Review of Glen Coulthard, red skin, white masks: Rejecting the colonial politics of recognition. Theoria, 63, 72–85. Coulthard, G. (2014). Red skin, white masks: Rejecting the colonial politics of recognition. Minneapolis, MN: University of Minnesota Press. Davidson, H. (2018). Garma festival: Noel Pearson warns against treaty before constitutional deal. Guardian Australia. https://www.theguardian.com/aus tralia-news/2018/aug/05/garma-festival-noel-pearson-warns-against-treatybefore-constitutional-deal. Accessed 20 August 2018. Davis, M. (2007). The United Nations declaration on the rights of Indigenous peoples. Indigenous Law Bulletin, 6(30), 50. https://www5.austlii.edu.au/ au/journals/IndigLawB/2007/50.html. Davis, M. (2014). Competing notions of constitutional ‘recognition’: Truth and justice or living ‘off the crumbs that fall off the White Australian tables’? (Papers on Parliament No. 62). Canberra: Parliament of Australia. Elliott, M. (2018). Indigenous resurgence: The drive for renewed engagement and reciprocity in the turn away from the state. Canadian Journal of Political Science, 51(1), 61–81. Fraser, N. (2000). Rethinking recognition. New Left Review, 3, 107–120. Fraser, N. (2003). Rethinking recognition: Overcoming displacement and reification in cultural politics. In B. Hobson (Ed.), Recognition struggles and social movements: Contested identities, agency and power (pp. 21–32). Cambridge: Cambridge University Press. Grant, S. (2016). New Indigenous middle class finds place in modern economy. Public Affairs. www.pursuit.unimelb.edu.au/articles/new-Indigenous-mid dle-class-finds-place-in-modern-economy. Accessed 4 February 2017.

50

D. O’SULLIVAN

Hegel, G. W. F. (1977). The phenomenology of spirit (A. V. Miller, Trans.). Oxford: Clarendon. Honneth, A. (1995). The struggle for recognition: The moral grammar of social conflicts. Cambridge: MIT Press. Independent Working Group on Constitutional Transformation. (2016). Matike mai o Aotearoa. www.converge.org.nz/pma/iwi.htm. Accessed 1 July 2017. Ivison, D., Patton, P., & Sanders, W. (2000). Introduction. In D. Ivison, P. Patton, & W. Sanders (Eds.), Political theory and the rights of Indigenous peoples. Cambridge: Cambridge University Press. Jones, C. (2014). A M¯aori constitutional tradition. New Zealand Journal of Public and International Law, 12(1), 187–203. Kukathas, C. (1992). Are there any cultural rights? Political Theory, 20(1), 105– 139. Moreton-Robinson, A. (2003). I still call Australia home: Indigenous belonging and place in a white postcolonizing society. In Uprootings/regroundings: Questions of home and migration (pp. 131–149). New York: Berg. Moreton-Robinson, A. (2004). Whiteness, epistemology and Indigenous representation. Whitening Race: Essays in Social and Cultural Criticism, 1, 75–88. Moreton-Robinson, A. (2015). The white possessive: Property, power, and Indigenous sovereignty. Minneapolis, MN: University of Minnesota Press. O’Sullivan, D. (2019). Indigenous people no longer have the legal right to say no to the Adani mine—Here’s what it means for equality. https://theconversat ion.com/Indigenous-people-no-longer-have-the-legal-right-to-say-no-to-theadani-mine-heres-what-it-means-for-equality-122788. Accessed 9 July 2020. O’Sullivan, D. (2020). We are all here to stay’: Sovereignty, citizenship and the UN declaration on the rights of Indigenous peoples. Canberra: ANU Press. Sen, A. (1999). Development as freedom. Oxford: Oxford University Press. Supreme Court of Canada. (1997). Delgaamukw v. British Columbia. SCR 1010. Taylor, C. (1994). Multiculturalism and the politics of recognition. Princeton: Princeton University Press. The High Court of Australia. (1992). Mabo and others v. Queensland (No. 2). http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/high_ct/ 175clr1.html?query=%7Emabo. Accessed 12 November 2008. The High Court of Australia. (1996). The Wik Peoples v The State of Queensland & Ors; The Thayorre People v The State of Queensland & Ors. http://www. austlii.edu.au/au/cases/cth/high_ct/unrep299.html. Accessed 1 July 2000.

2

RECOGNITION

51

United Nations. (2007). Universal declaration on the rights of Indigenous peoples. New York. Waldron, J. (2004). Settlement, return and the supersession thesis. Theoretical Inquiries in Law, 5(2), 237–268.

CHAPTER 3

Recognising Sovereignty and Citizenship

3.1

Introduction

This chapter considers sovereignty as a social contract (Rousseau 1968). It shows that public sovereignty need not be understood as an absolute authority from which Indigenous peoples must be excluded. Recognition of Indigenous presence as independent nations, and as people whose citizenship is framed by culture and colonial experience, has significant implications for how political authority is fairly distributed and for the construction of citizenship. The chapter proposes that because recognition is reciprocal, the state’s recognition of Indigenous sovereign authority must logically and necessarily accompany any recognition that Indigenous peoples are willing to grant the state. Recognising another’s substantive citizenship means that: ‘[I]n calling for a response from someone, I must simultaneously acknowledge their capacity to call for a response from me’ (Laden 2012, p. 67). From this perspective, recognition involves compromise, but also reflects a pragmatic politics of potential. If recognition is not granted to the state unconditionally, Indigenous peoples may ask themselves; what would it take to make the state morally legitimate? What would it take to construct a non-colonial state and what would a non-colonial state look like? Which political capacities ought Indigenous citizens enjoy and in which ways do © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 D. O’Sullivan, Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State, https://doi.org/10.1007/978-981-33-4172-2_3

53

54

D. O’SULLIVAN

Indigenous peoples want these capacities to be distinctive? What does it mean to be an Indigenous citizen; in which ways is Indigenous citizenship conceptually different from the citizenship enjoyed by settlers and their descendants? What does it mean for Indigenous peoples to accept Tully’s (2014) observation that ‘citizenship is not the endless repetition of the same formula… An instrument controlled by the hegemonic class or the dialectical overcoming of antagonistic forces’ (p. 6)? These questions presume that the boundaries of political sovereignty are not constant, absolute or incontestable, and are profoundly important for both the construction of sovereignty and the practice of citizenship. Sovereignty is not a static power over the people. It is evolutionary and a reflection of collective public authority. Citizenship provides a distinctive political language through which to examine Indigenous rights which is why these questions are addressed throughout this book and show, among other considerations, the importance of the argument that: ‘Indigenous peoples are not simply a litmus test of our thinking about … but represent a much deeper challenge to the way we conceptualise notions of citizenship, sovereignty, democracy and freedom in the first place - and indeed the nature of political philosophy itself’ (Ivison 2011, p. 131). Arguments about sovereignty, citizenship and democracy, including the Waitangi Tribunal’s finding that the Treaty of Waitangi was not a M¯aori cession of sovereignty to the British Crown, are ultimately reducible to the question of who belongs to the shared national polity and on what terms? The ways in which belonging is recognised or framed by these arguments influence Indigenous opportunities for substantive social and economic participation. In other words, the ways in which recognition is constructed influences what it means to belong as Indigenous.

3.2

Recognising a New and Inclusive Sovereignty

Mutual recognition requires mutual agreement on the meaning of sovereignty, its source, and the substantive authority that it implies. As a starting point, the co-existence and overlapping of different bodies of sovereignty means that the concept is not necessarily, or in practice, an absolute and indivisible political authority. It is not an authority exercised over and above all others by an unconstrained state. Recognising that sovereignty need not hold these exclusive attributes of domination

3

RECOGNISING SOVEREIGNTY AND CITIZENSHIP

55

allows colonialism to be contested, and illegitimises the presumption of Indigenous people as subjects of a colonial sovereign. Sovereignty is inevitably limited by and shaped by the relationships that an Indigenous people forges with those nearby. Most especially, settler society. The capacity to manage those relationships is a mark of selfdetermination. However, if Indigenous people’s capacities to live lives that they have reason to value are restricted by the non-Indigenous citizenry’s account of what constitutes the good life, then self-determination is compromised. Sovereignty is not a meaningful and worthwhile political authority in these circumstances. On the other hand, just terms of association mean that the state cannot be seen as a binary opponent, but as an institution that all people should have equal capacity to influence. Indigenous political thought may then avoid deference or accountability to the state. Sovereignty then assumes an Indigenous politics of presence. It embodies the right to restrain others from interfering in one’s affairs. Thus, removing an important obstacle to self-determination as the right to determine how one will live in association with others, to make one’s own decisions about what constitutes the good life, and about the relationships that will be pursued with others. Sovereignty may also include the right to establish the terms on which one is included; the terms on which one is known (Coulthard 2014). In New Zealand, the Treaty of Waitangi contextualises recognition. It contextualises how M¯aori make themselves known and provides a basis for working out just terms of association between M¯aori and the state. Certainly, the state is at a clear advantage, but the Treaty, as the Declaration on the Rights of Indigenous Peoples may do elsewhere, precludes a hegemonic relationship. It does so by removing the assumption that the state’s view of justice takes moral priority simply because it is the state’s view. Recognition means that the state’s view of its own sovereignty must transcend Hobbes’ (1996) original conceptualisation of the sovereignty of European states which, he developed on ‘the supposition of the absence of sovereignty in the New World’ (Moloney 2011, p. 189). The New World was distinguished by anarchy which contrasted with the order that state sovereignty created. The exclusion of Indigenous societies from statehood justified their colonisation, and Hobbes’ ‘motif of savage anarchy remained central to our conceptualisation of the modern state within the international realm into the twentieth century’ (Moloney 2011, p. 189). Hobbes (1996) argued that:

56

D. O’SULLIVAN

In such conditions [of anarchy] there is no place for Industry; because the fruit thereof is uncertain: and Consequently no Culture of the Earth; no Navigation, nor use of the commodities that may be imported by Sea; no commodious Building; no Instruments of moving; and removing such things as require much force; no knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continuall feare, in danger of violent death; And the life of man, solitary, poore, nasty, brutish and short. (p. 89)

For Hobbes (1996), this described a pre-political state, where people did not have the capacity to act as a commonwealth, vest authority in a sovereign and thus form a state. However, few Indigenous societies actually met Hobbes’ presumption of anarchy, so its co-option into a political justification for colonisation was perhaps an argument of convenience. Contemporary recognition and its acceptance of Indigenous persons as citizens, coupled with Indigenous assertions of ongoing independent nationhood, logically requires a re-configuration of that concept of sovereignty. The transition from the idea of sovereignty as a power vested in the person of the King or Queen, to one vested in the people, and expressed through citizenship, allows Indigenous people to assume a substantive political position, inside the state as well as outside it. Inside the state, parliament belongs to the citizens because it is they, not the King or Queen, who choose its members. This means that the scope that exists for treaties to be honoured, or for new ones to be considered, is the outcome of a political process and of the moral persuasiveness of Indigenous arguments. The political value of that scope evolves over time. On the one hand, it can be limited by the self-interest and prejudice of postsettler populations. On the other, it can be expanded by the decisions of courts and tribunals and by the strength of the Indigenous presence in the sovereignty of the Crown-in-Parliament, that is as members of parliament. The assumption of Indigenous political standing both inside and outside the state means that relationships of reciprocity may be developed as both liberal and Indigenous objectives. For it is through equal and reciprocal relationships that political authority transcends the abstract to acquire practical and meaningful significance. It is also through these relationships that communities define justice. And through which they define the just terms of association that guide relationships among the various

3

RECOGNISING SOVEREIGNTY AND CITIZENSHIP

57

repositories of public authority. Civic relationships of reciprocity contest the ‘them’ and ‘us’ binary that distinguishes sovereignty as a construct belonging exclusively to the state, with Indigenous peoples on the outer as the state’s junior bicultural partner as the bicultural theory of Indigenous state relationships imposes in New Zealand, for example (O’Sullivan 2007). Reciprocal recognition means that sovereignty ought to secure and reflect, rather than constrain, citizenship’s capacities. It ought to secure citizens’ capacities to influence the political order. The capacity for influence contrasts with the possibility of being subjects of a sovereign—a sovereign one had no say in appointing and whose authority one had no say in constructing. Subjecthood is not the civic way of life that self-determination requires for its fullest expression. Citizenship is ‘a distinctive and active form of civic action’ (Laden 2014, p. 104), and is an expression of public authority. Sovereignty ought to reflect one’s freedom, which is the ability to participate in the development of the laws and norms of justice that describe and regulate human relationships. These laws and norms are just only if everybody has had the same opportunity to participate in their development, and ‘obedience to a law one prescribes to oneself is freedom’ (Rousseau 1968, p. 65). Civil society, which reflects each person’s capacity to share in public sovereignty, emerges ‘when the voice of duty has taken the place of physical impulse, and right that of desire, that man, who has hitherto thought only of himself, finds himself compelled to act on other principles, and to consult his reason rather than study his inclinations’ (Rousseau 1968, p. 64). An inclusive understanding of sovereignty is a fair and reasonable aspiration because: ‘If the people promises simply and solely to obey [sovereignty] dissolves itself by their very pledge; it ceases to be a people; for once there is a master there is no longer a sovereign, and the body politic is therefore annihilated’ (Rousseau 1968, p. 70). Sovereignty is not ‘a covenant between a superior and inferior’ (Rousseau 1968, pp. 76–77). Its essence is the ‘general will’ (Rousseau 1968, p. 141). A fundamental equality prevails because ‘by the nature of the compact, every act of sovereignty, that is, every authentic act of the general will, binds or favours all citizens equally, so that the sovereign recognises only the whole body of the nation and makes no distinction between any of the members who compose it’ (Rousseau 1968, p. 76). While this presumption could tend towards Indigenous people’s assimilation by not recognising distinctive Indigenous presence, it could equally, offer protection by preventing

58

D. O’SULLIVAN

discriminatory laws and public policies. If the powers of the sovereign apply equally to all persons it is because all persons are equally part of the sovereign. For example, dismissing the presumption of terra nullius ideally transforms the nature of sovereignty by diminishing the possibility of the sovereign enjoying an exclusive ethnic character. Assimilationist possibility is balanced by the presumption that ‘the sovereign has never any right to impose greater burdens on one subject than on another’ (Rousseau 1968, p. 77). Rousseau’s (1968) description of majority rule also offers some protection to minorities: ‘the more important and serious the matter to be decided, the closer should the opinion which is to prevail approach unanimity’ (p. 154). From this perspective, deliberative arrangements should allow people of different perspectives to engage in discussion and to reason with one another. This means that people are attentive to considered arguments rather than weight of numbers alone determining the general will. However, the assumption that: ‘When… the opinion contrary to my own prevails, this proves only that I have made a mistake, and that what I believed to be the general will was not so’ (p. 153), overlooks culture and colonial experience as important determinants of how one thinks about political questions and about the aspirations that public policy should consider. Differentiated liberal citizenship is a response that this book considers as an expression of inclusive sovereignty. Principles and practices of distributed sovereignty are well established in post-settler liberal states. Distribution is an underlying practice in federal states like Australia and Canada and, in different ways in a state like New Zealand, where the devolution of public services, for example, creates explicit spaces of Indigenous agency. Australia’s Aboriginal Community Controlled Health Services (ACCHOs) and their potential as models for further development is discussed in Chapter 6, and shows that one need not necessarily read a culturally homogenising effect into the arguments that sovereignty, is ‘nothing other than the exercise of the general will… and… the sovereign… is simply a collective being’ (Rousseau 1968, p. 69) or that: ‘Just as nature gives each man an absolute power over all his own limbs, the social pact gives the body politic an absolute power over all its members; and it is the same power which, directed by the general will, bears as I have said, the name of sovereignty’ (Rousseau 1968, p. 74). There is, alternatively, a fundamental human equality in the argument that ‘the general will is an institution in which each necessarily

3

RECOGNISING SOVEREIGNTY AND CITIZENSHIP

59

submits himself to the same conditions which he imposes on others; this admirable harmony of interest in justice gives to social deliberations a quality of equity’ (Rousseau 1968, p. 76). Similarly, and centrally to liberal recognition: ‘The commitments which bind us to the social body are obligatory only because they are mutual; and their nature is such that in fulfilling them a man cannot work for others without at the same time working for himself’ (Rousseau 1968, p. 75). Sovereignty is not an absolute and independent authority. So, when one argues that there is moral and political significance to Indigenous peoples not ceding sovereignty to the settler state, one must pragmatically, think of sovereignty as a broader relative and relational construct. Conversely, one denies the breadth of political possibility if one thinks about Indigenous participation in the state only as an attempt to ‘“inject” Indigenous persons into pre-existing colonial relationships of capitalism, taken for granted (if reluctantly) as the horizon of the possible’ (Coburn 2016, p. 76).

3.3

Sovereignty as Possibility

Sovereignty is a construct of political possibility. It is neither an Indigenous authority that colonial powers usurp without meaningful Indigenous resistance, nor does it fit Palmer’s (1995) argument that: Notions of sovereignty are collapsing all over the world… Far from being the indivisible omnipresent concept that Hobbes made it in Leviathan, sovereignty is more like a piece of chewing gum. It can be stretched and pulled in many directions to do almost anything. Sovereignty is not a word that is useful and it should be banished from political debate. (pp. 153– 154)

Sovereignty remains a central concept in Indigenous political thought because colonialism, as a matter of course, means that there is contest over political authority; conflict over who has it and why, conflict over where it may be exercised and by whom, and conflict over its limits. This is why it was significant that, in 2014, the Waitangi Tribunal found that, as M¯aori had consistently argued, the Treaty of Waitangi was not a cession of sovereignty by M¯aori to the British Crown. Significant, even though the government’s counter-position was that there was no doubt that the

60

D. O’SULLIVAN

Crown is sovereign and that the finding, which is non-binding, did not set aside that position (Finlayson cited in Kenny 2014). In spite of the government’s dismissive view, the finding raised a fundamentally important legal and political question of what, exactly, is the sovereignty that was not ceded by M¯aori and what is the practical meaning of the sovereignty that the Crown claims? What is the relationship between the two, especially if as Justice Williams (2010), the first M¯aori appointed to the New Zealand Supreme Court, has argued, the Crown is M¯aori as much as it is non-M¯aori. Fundamentally, there is a need for a mindset shift away from the pervasive assumption that the Crown is P¯akeh¯a (Anglo-Celtic), English-speaking and distinct from M¯aori rather than representative of them. Increasingly, in the 21st century, the Crown is also M¯aori. If the nation is to move forward, this reality must be grasped. (p. 51)

From a British legal perspective, Crown sovereignty was acquired through Letters Patent issued by the Queen under the New South Wales Continuance Act 1840. Neither the Act nor the Letters Patent referred to the Treaty, and sovereignty over large parts of New Zealand was also claimed by right of discovery. It was sufficient to assert sovereignty under an Act of the British Parliament. The Treaty would only become relevant if incorporated into further legislation (Palmer 2008). The Supreme Court held in favour of this position in 1877, with Chief Justice Prendergast remarking that the instrument was ‘worthless’ a ‘simple nullity’. It was, he said, an agreement concluded between a ‘civilised nation and group of savages’ (Supreme Court of New Zealand 1877). These observations were made in spite of Britain having proposed the formation of the Chiefs of the United Tribes of New Zealand in 1835, so that a Declaration of Independence could be promulgated, and a sovereign entity acknowledged with which to negotiate a treaty. Furthermore, Palmer (2008) argues that there were, in fact, strands of earlier nineteenth century British thought which maintained that the Treaty’s non-binding legal status did not mean that the agreement was not binding on the honour of the Crown. It is important that even if it wishes to claim the Treaty as a cession of sovereignty it is still a matter of honour for the Crown to contemplate Attorney-General William Swainson’s argument in 1859 that:

3

RECOGNISING SOVEREIGNTY AND CITIZENSHIP

61

if they had been aware that in ceding the Sovereignty they gave to others the power to abrogate their own usages and customs, to destroy the power of their own chiefs, and to impose our own laws upon them - it may well be doubted whether a single chief of influence would have become a party to the Treaty of Waitangi. (cited in Palmer 2008, p. 70)

While assuming sovereignty on the strength of a British Act of Parliament the Letters Patent did, however, contain the provision that: Provided always, that nothing in these our letters patent contained shall affect or be construed to affect the rights of any aboriginal natives of the said colony of New Zealand, to the actual occupation or enjoyment in their own persons, or in the persons of their descendants, of any lands in the said colony now actually occupied or enjoyed by such natives. (cited in Palmer 2008, p. 58)

In short, sovereignty was not assumed as an hegemonic power over M¯aori. The idea of different forms of political authority co-existing and co-operating with one another was not a singularly M¯aori interpretation of political possibility. Just as it was in 1840, it is erroneous in 2020 to see the authority that the Treaty conferred, or that the Letters Patent claimed, as the right to exert unilateral control over others. It is erroneous to see sovereignty as the right to diminish rangatiratanga. It is therefore reasonable and perhaps necessary if the Treaty’s role is to be stabilised, as Palmer (2008) proposes, for there to be some kind of settlement of the meaning of sovereignty and what it means for the exercise of which powers, and by whom. The subject of this books remaining chapters is, therefore, the kind of sovereignty that might flow from substantive recognition and be given effect through treaties, a Voice and other forms of democratic participation.

3.4

Sovereignty as Legitimacy

Law, morality and politics co-exist in a state of perpetual tension. Yet, at least since the passing of the Treaty of Waitangi Act 1975 there has been consistent state attention to the ideal of moral legitimacy, even though the post-settler population’s majority status means that for the state it is not politically necessary to seek that legitimacy. The extent to

62

D. O’SULLIVAN

which the Waitangi Tribunal’s powers of investigation and recommendation have met M¯aori claims has varied and not reached the point of legitimacy from many M¯aori perspectives. However, the transition from symbolic to substantive recognition, including secure political capacities for M¯aori self-recognition, is supported by the more prominent place that the Treaty has come to enjoy in public affairs. If the Treaty did not cede sovereignty, the political authority that the Crown now claims was seized. At least morally, this sovereign authority can only be legitimised if M¯aori are brought into the sovereign authority of the Crown. At this point, the Tribunal finding has not had a material impact on political relationships or policy possibilities, but as a matter of principle it does appear to support greater M¯aori political authority and capacity to determine their own affairs. It is also significant that if it was kawanatanga, the right to establish government that was granted to the British Crown, the Treaty’s simultaneous conferral on M¯aori of the rights and privileges of British subjects, means that kawanatanga cannot have been granted as the exclusive preserve of the non-M¯aori population. If subjecthood has evolved into citizenship and if M¯aori are citizens, they are entitled to deliberate, and entitled to expect that their deliberations have the same influential capacity as that of other citizens. In the United States, Bruyneel (2007) argues that Indigenous sovereignty is ‘unclear because it is not easily located inside or outside the United States’ (p. xiii). He argues that in the United States, Indigenous resistance to the colonial state occurs in a ‘third space of sovereignty’, that is neither inside nor outside the national political system. There is, instead, a ‘politics on the boundaries’ where colonial authority is contested and Indigenous aspirations asserted (p. xi). However, what the New Zealand experience shows, and what may be instructive as treaties are contemplated in Australia, is that meaningful contemporary sovereignty cannot be located inside or outside the state alone, but belongs in substantive form in both. This is the only assumption on which just terms of association, reflective of the full possibilities of self-determination, may develop. If sovereignty is understood in this way, one needs to reject Kymlicka’s (1995) view that self-government is ‘a right against the authority of the federal government, not a right to share in the exercise of that authority’ (p. 143). This is a limited expression of democratic possibility, and a presumption that does not ordinarily coincide with Indigenous expectations of what self-determination requires. Though, it may help to explain

3

RECOGNISING SOVEREIGNTY AND CITIZENSHIP

63

the view that greater Indigenous participation in Canadian political institutions ‘has not, by and large, been a goal of Aboriginal leaders or scholars in Canada, primarily because it appears to stand at odds with the more important role of Aboriginal self-determination’ (Williams 2011, p. 93), which in that country, is more commonly seen as an authority that is exercised in the Indigenous nation alone. Hobbs’ (2018) contrasting view is that if a group’s voice is systematically excluded from public decisionmaking ‘the normative legitimacy of the decision’ (Hobbs 2018, p. 323) is undermined, and Indigenous persons would not be part of the national sovereign with capacities of equivalent influence to other citizens. The question of how sovereignty may be expressed within an imposed political system is an important one. If it cannot be answered, there is limited scope for self-determination. Sovereignty is the right to pursue and fashion new relationships as much as it is the right to preserve existing ones. For example, Simpson’s (2011) aspirations for sovereign authority maintain that: We need to rebuild our culturally inherent philosophical contexts for governance, education, healthcare, and economy. We need to be able to articulate in a clear manner our visions for the future, a living as Indigenous Peoples in contemporary times. We need to do this on our own terms, without the sanction, permission, or engagement of the state, western theory or the opinions of Canadians. In essence, we need to not just figure out who we are; we need to re-establish the process by which we live who we are within the current context we find ourselves. (p. 17)

In Australia, Moreton-Robinson (2015) argues that the Indigenous relationship to land demonstrates a ‘radical’ and ‘incommensurable’ difference between the nature of Indigenous belonging to country, grounded in enduring spiritual and geopolitical connections, and white belonging grounded in possession (Moreton-Robinson 2015, p. 11). MoretonRobinson (2015) explains this Indigenous conception of belonging. During the dreaming, ancestral beings created the land in life, they are tied to particular tracks of country. Knowledge and beliefs tied to the Dreaming inform the present and future. Within this system of beliefs, there is scope for interpretation and change by individuals through dreams and their lived experiences. The ancestral beings created animals, plants, humans, and the physiographic features of the country associated with them. They also established

64

D. O’SULLIVAN

the Aboriginal ways of life: a moral code for a social institutions and patterns of activity. Ancestral beings provided the rules for what can and cannot be done through both good and bad behaviour. Ancestral beings are immortal. (pp. 11–12)

This means that there are unchanging principles according to which relationships are legitimised and against which authority and responsibility can be interpreted. Sovereignty is a body of rights. But it is also a body of responsibilities and relationships. If, for example, sovereignty is a spiritual notion in the way that the Uluru Statement proposes, it poses no threat to the integrity of the post-settler nation state. Our Aboriginal and Torres Strait Islander tribes were the first sovereign Nations of the Australian continent and its adjacent islands, and possessed it under our own laws and customs. This our ancestors did, according to the reckoning of our culture, from the Creation, according to the common law from ‘time immemorial’, and according to science more than 60,000 years ago. This sovereignty is a spiritual notion: the ancestral tie between the land, or ‘mother nature’, and the Aboriginal and Torres Strait Islander peoples who were born therefrom, remain attached thereto, and must one day return thither to be united with our ancestors. This link is the basis of the ownership of the soil, or better, of sovereignty. It has never been ceded or extinguished, and co-exists with the sovereignty of the Crown. How could it be otherwise? That peoples possessed a land for sixty millennia and this sacred link disappears from world history in merely the last two hundred years? With substantive constitutional change and structural reform, we believe this ancient sovereignty can shine through as a fuller expression of Australia’s nationhood. (Referendum Council 2017, p. 1)

This is a different kind of sovereignty to that which might be positioned as absolutely and indivisibly belonging to the state. It is a sovereignty reflected also in a different kind of citizenship, just as Borrows (2000) imagines when he argues that the imposition of diversity and pluralism in law and politics has confused the nature of Aboriginal citizenship.

3

RECOGNISING SOVEREIGNTY AND CITIZENSHIP

65

The question thus raised for contemporary political theory is whether it can help to construct different kinds of diversity and pluralism at a national level alongside a singular Indigenous defined citizenship over Indigenous affairs. This is what Borrows (2002) calls invoking a ‘citizenship with the land’ (p. 138); a citizenship based on the renewal of Indigenous rights, or from Hobbs’ (2018) perspective, in positioning sovereignty as a spiritual notion rather than as a legal concept, the Uluru Statement from the Heart makes a claim for Indigenous inclusion in the state with reference to a spiritual account of just relationships. ‘Assertions of Indigenous sovereignty therefore do not necessarily call for legal secession but for meaningful institutional change to embed a constitutional relationship built on equal partnership and equal political status’ (p. 308).

3.5

Recognising Citizenship

Reclaiming citizenship ‘with the land’ requires a ‘new story’: ‘We no longer need a revolutionary message in a transformative time; we need a transformative message in a reactionary time’ (Borrows 2000, p. 328), and a new construction of citizenship as upholding a distinctive Indigenous place in the sovereign. The political and conceptual context in which this new story is developed is one that admits that citizenship is not an absolute and singular political status, but a body of contestable and evolving capacities. It is a liberal theory of indigeneity’s task to annunciate the capacities that are necessary to relieve the post-settler state of its imperialist potential. Annunciating those capacities is among the recurrent themes in this book’s remaining chapters. A theme that is set against an alternative argument that recognising the state, and accepting its citizenship, may be seen as acceding to the colonial strategy of assimilation. For example in 1824, the president of the Chippewa Indians’ Incorporation feared assimilation as the Indian Act ’s intention: ‘A law has been passed making the Indians full citizens of the United States… and it will not be for very much longer that we will gather together in this fashion’ (cited in Bruyneel 2007, p. 109). Certainly, in New Zealand in 1840, citizenship’s precursor, British subjecthood, was a status that rationalised colonial authority over M¯aori. However, if the state is legitimate by virtue of a Treaty, as it is in New Zealand, or by pragmatic acceptance that it is here to stay, it makes sense to examine citizenship for its capacities, and to seek recourse in

66

D. O’SULLIVAN

moral reasoning, to circumvent its limitations. The alternative is a diminished voice in public affairs and thus a diminished capacity to influence the society in which one lives, however unjustly that society may have emerged, and however unjustly it continues. Citizenship implies obligations to the political community. However, these should not be imposed. They should only be expected of people who have freely chosen to be part of the community and are able to accept that they have the opportunity to exercise citizenship’s full capacities and equally enjoy the benefits that it confers. Citizenship ought to be a reciprocal relationship, imposing expectations on people, only if they receive something of value in return. It is from the capacity to help shape the society in which one lives that citizenship’s value emerges. If that capacity is not available to people in meaningful ways citizenship is unjustly burdensome. Bruyneel (2007) argues that when the Indian Citizenship Act 1824 was enacted in the US there were ‘two distinct and direct Indigenous responses’ to US citizenship: ‘(1) support for it as a just measure to secure the long-standing political identity of Indigenous people in America and (2) outright rejection of it in the name of tribal sovereignty and citizenship’ (p. 98). Importantly, as Bruyneel (2007) explains, both ‘responses, in their own ways, exposed the postcolonial possibilities open to Indigenous political actors when contesting colonial positions on Indigenous political agency, identity and autonomy’ (p. 98). These factors continue to distinguish contemporary Indigenous thought in jurisdictions like Australia, Canada and New Zealand. However, in each of these, there are also possibilities for an alternative dual or differentiated citizenship which is compatible with, and integrates, the claims of self-determination and the capacities of liberal citizenship. From this integration, new spaces of sovereignty emerge. However, the relationship between selfdetermination and liberal citizenship is not automatic and is, in various ways, constrained and contested by the colonial priorities of the modern state. There are, consequently, at least two important ways in which Indigenous people resist the state’s oppressive logic. First, they struggle against the structure of domination as a whole and for the sake of their freedom as peoples. Second, they struggle within the structure of domination vis-a-vis techniques of government by exercising their freedom of thought and action with the aim of modifying the system

3

RECOGNISING SOVEREIGNTY AND CITIZENSHIP

67

in the short term and transforming it from within in the long-term. (Tully 2000, p. 50)

In short, this is the practice of differentiated liberal citizenship which is a practice that incrementally reconfigures the state by claiming political spaces of influence and using them for self-determining purposes. Its possibility as a path to substantive Indigenous participation and influence is examined in this book’s remaining chapters. With respect to education (Chapter 8) and health (Chapter 7) policy, especially, the book shows that translating differentiated citizenship’s presumptions into practical policy requires new and innovative ways of thinking about the scope that exists in liberal practice for different means of Indigenous participation and modes of belonging to, and helping to construct, a post-colonial state. It is instructive to consider what it means to accept such practices into public discourse. Practices grounded in distinctiveness, and positive understandings of Indigenous ‘difference’ to show that liberalism need not as a matter of course, justify Indigenous people’s assimilation into an homogenous national political community. Differentiated citizenship presumes that public sovereignty is inclusive and ‘grounded in the right of all citizens to shape the society in which they live’ (Clarke 2006, p. 122). It facilitates a process of gradual reform to show that sovereignty is not absolute, incontestable and found in one unchanging place. Sovereignty is dynamic and fluid and although it is often usurped, the liberal political process does not foreclose resistance and reconfiguration. Citizenship, too, is contested. Its meaning evolves with circumstance and political values, and it is more usefully seen as the embodiment of political capacities rather than the description of political status. Rather than being the gift of the sovereign it may be the outcome of ‘negotiated practices’ established through ‘participation’ (Tully 2000, p. 9).

3.6

Inclusive Citizenship

The rules of the political relationship are imposed on a subject; whereas the citizen helps to determine the rules. It is the citizen who determines the limits of public authority which means that ultimately the citizen is sovereign. The implications for Indigenous politics of seeing citizenship, and the authority that justifies it in these ways, is significant because it makes citizenship an instrument of political capacity; an instrument of self-determination.

68

D. O’SULLIVAN

Self-determination involves defining political capacities and using them in ways that are personally meaningful. Being able to say that one goes to school for a worthwhile purpose or being able to say that one has contributed to the development of worthwhile public policy. Substantive citizenship also means being able to say that the society in which one lives reflects one’s values. It is not necessary, even in a normative liberal account of citizenship, for all people to exercise their citizenship in the same ways and for the same purposes. If citizenship does not contribute to the enjoyment of a life that one has reason to value (Sen 1999), it is an empty or even hostile political construct. Recognition, as an ideal, should then be expected to bring equality into citizenship. The equality that mutual recognition implies allows citizens to ‘approach others unarmed and with the embodied attitude and comportment of openness and trustworthiness… the extended open hand, which says ‘I trust you and come in peace, please reciprocate’ (Tully 2014, p. 67). However, the conditions for such relationships, which are implicitly non-colonial, are neither clear nor simply established. Though, they are preliminary to the development of new treaties, it is not clear that either the Victorian parliament nor Victoria’s Indigenous nations, for example, appreciate the political enormity of the task they have agreed to conduct as they try to recognise each other through treaties; a point which is elaborated upon in the next chapter, which presents treaties as a form of recognition carrying much greater concession on the state’s part than the simple insertion of a clause into the Constitution to recognise the fact of Indigenous prior occupancy. In short, there are complex legal and political questions confronting Victoria and, indeed, the Northern Territory as they contemplate treaties. They may, ultimately, find that they are unwilling to accept the price for recognition that the Indigenous nations set and withdraw from the negotiating process. Similarly, Indigenous nations may find that there are not, in fact, terms on which they could accept the legitimacy of the state; that the state is not able to transform itself into a non-colonial entity. On the other hand, the very fact of inviting the state to consider treaties is a concession to Crown sovereignty. The invitation is for the Crown to contemplate that its sovereignty is not exclusive and indivisible and, at least morally, already exists alongside extant Indigenous sovereignty. From this perspective, the question is now one of how to deal with the political considerations of such a concession. In Canada, citizenship ‘under Aboriginal’ influence may mean greater attention to land use and broader cultural imperatives, for example.

3

RECOGNISING SOVEREIGNTY AND CITIZENSHIP

69

It would presumably mean that traditional political, environmental and social relationships are respected (Borrows 2000, p. 330). At the same time, those people pursuing ‘Aboriginal control of Canadian affairs’ are not exercising a distinct and separate citizenship but ‘should stand beside reserve-based teachers such as Aboriginal elders, chiefs, grandmothers, aunties, hunters, fishers, and medicine people as bearers and transmitters of culture’ (Borrows 2000, p. 330). For Borrows (2000), this means that citizenship is a matter of ‘participation’ with the land, which is attainable only through a substantive and broadly focused differentiated liberal citizenship. Accessing citizenship beyond one’s own community is a matter of people enlarging and increasing ‘their influence over matters that are important to them’ (Borrows 2000, p. 329). Substantive citizenship is an affirmation of the legitimacy and longevity of Indigenous presence inside as well as outside the state. Self-rule or self-government provides an essential but insufficient account of the right to self-determination. Separating self-government from substantive state citizenship presumes that Indigenous people will not enjoy equal political status within the state. It confines them to ‘otherness’, to the status of people whose belonging has truly been set aside by the colonial power, with an entitlement to influence over just one part of the society in which they live. In Canada, Borrows (2000) argues that the increasing number of Indigenous university graduates, for example, is a sign of expanding citizenship, meaning that ‘Aboriginal narratives on citizenship have to be transformed’ (p. 330). If our people, institutions, and ideologies are relevant for participation beyond our boundaries, this marks the living faith of our ancestors… Aboriginal peoples can resist assimilation by applying their traditions to answer the questions they encounter in the multifaceted pluralistic world they now inhabit. (p. 330)

One element of this resistance is the indigenising of the bureaucracy that Maaka and Fleras (2009) propose. Their argument and aspiration, is to transform public citizenship to give distinctive meaning to Indigenous belonging. Important, because as Taylor’s (1994) distinction between human nature and identity shows, a claim to distinctive citizenship is primarily a claim to humanity—a claim to live as Indigenous:

70

D. O’SULLIVAN

Herder put forward the idea that each of us has an original way of being human… This idea has burrowed very deep into modern consciousness… There is a certain way of being human that is my way… this notion gives a new importance to being true to myself. If I am not, I miss the point of my life; I miss what being human is for me. (p. 30)

As Taylor (1994) continues, this means that an authentic human being cannot be imposed through policies of assimilation or the creation of social expectations to think and behave as somebody else. The expectation to think and behave as somebody else is established when other people create laws, public policies and public institutions. This is why active participation and leadership wherever power lies, is not just the exercise of citizenship, but the exercise of humanity. Establishing one’s place as a citizen is also important because citizenship ‘is not a status given by the institutions of the modern constitutional state and international law, but a set of negotiated practices in which one becomes a citizen through participation’ (Tully 2014, p. 9). Democracy, too, means that sovereignty is contestable and shows that liberalism is not an intellectually restrictive discourse unable to consider plural interpretations of freedom and unable to contest attempts by the former Australian Prime Minister Malcolm Turnbull, and his successor Scott Morrison, to close the debate on a Voice to parliament, for example. Democratic citizenship ordinarily presumes opportunities to ‘exchange public reasons over ratifying constitutional amendments or participate in a constituent assembly’ (Tully 2014, p. 15). Liberal democracy allows for spaces of Indigenous resistance, and self-determination means that Indigenous peoples are entitled to contribute to working out what those institutional spaces might be; this is not the reasonably exclusive capacity of an exclusively non-Indigenous state. For example, the Treaty of Waitangi helps to secure guaranteed M¯aori representation in parliament, and its broader relationship with sovereignty and citizenship also provide spaces of Indigenous capacity. The next chapter therefore discusses treaties as instruments of recognition with significant implications for the nature of sovereignty and practice of citizenship.

3.7

Conclusion

Recognition means admitting that there may be, both legitimately and practically, different and dispersed sites of sovereign authority within a single nation state. This recognition may not, on its own, make the post

3

RECOGNISING SOVEREIGNTY AND CITIZENSHIP

71

settler state legitimate from Indigenous perspectives. It may not on its own make the modern state post-colonial. But it does provide important and necessary foundations. It provides the foundation for secure Indigenous political presence. It is an announcement that ‘we are here to stay’ as Indigenous; that our political capacities are not justly usurped by the Crown’s, and that our independent political authority to manage our own affairs without interference is complemented by our distinctive presence in the shared sovereignty of the state, and is a reflection of our right to help shape and influence the society in which we live. What these assumptions may mean in practice, and how they may be admitted as liberal democratic objectives, is discussed in depth in Chapters 6–8. Examples from health and education policy are used to examine the possibilities for independent Indigenous authority outside the state to co-exist with distinctive deliberation, as citizens inside the state. Citizenship is a determinant of sovereignty’s practical meanings and its absence a determinant of the state’s capacity to impose an assimilationist priority. Citizenship raises expansive possibilities because it is ‘an indeterminate spatio-temporal ‘negotiated practice’ among partners in relations of dialogical interlocution and practical interaction in which the possibilities of going on differently is always present’. Citizenship is a language of ‘contestability and speaking otherwise’ (Tully 2014, p. 5) which is why, for example, in spite of government efforts, the arguments for a constitutionally enshrined Indigenous Voice to the Australian parliament, remain very much on the public agenda. Citizenship’s value does, however, rest on people’s willingness and capacity to use it to help shape the society in which they live according to their own values and aspirations. Their willingness and capacity to engage in an ongoing process of political negotiation and accommodation where they will not always enjoy ascendant influence but nor will they reside permanently on the margins of public authority. The Indigenous reclamation of political power is incremental and the ability to lead political decisions of collective importance depends on the willingness to confront the state as an ethnically exclusive entity and claim some ownership of its institutions, resources and decision-making processes. Examples of Indigenous actors confronting the state in these ways in both Australia and New Zealand are discussed in Chapters 7 and 8. Meanwhile, the foundation for the discussion of these examples is laid in the next chapter’s discussion of the significance of treaties as instruments of recognition, including recognition of an Indigenous place in the sovereign.

72

D. O’SULLIVAN

References Borrows, J. (2000). ‘Landed citizenship’: Narratives of Aboriginal political participation. In W. Kymlicka & W. Norman (Eds.), Citizenship in diverse societies. Oxford: Oxford University Press. Borrows, J. (2002). Recovering Canada: The resurgence of indigenous law. Toronto: University of Toronto Press. Bruyneel, K. (2007). The struggle between Indigenous resistance and American colonialism—Within its own borders. Minneapolis: University of Minnesota Press. Clarke, J. (2006). Desegregating the indigenous rights agenda. Australian Journal of Legal Philosophy, 31, 119–126. Coburn, E. (2016). Review of Glen Coulthard, red skin, white masks: Rejecting the colonial politics of recognition. Theoria, 63, 72–85. Coulthard, G. (2014). Red skin, white masks: Rejecting the colonial politics of recognition. Minneapolis, MN: University of Minnesota Press. Hobbs, H. (2018). Aboriginal and Torres Strait islander peoples and multinational federalism in Australia. Griffith Law Review, 27 (3), 307–336. Hobbes, T. (1996). Leviathan. Cambridge: Cambridge University Press. Ivison, D. (2011). “Another world is actual”: Between imperialism and freedom. Political Theory, 39(1), 131–137. Kenny, K. (2014, November 14). M¯aori did not give up sovereignty: Waitangi tribunal. Stuff . https://www.stuff.co.nz/national/politics/63196127/ null. Accessed 11 August 2015. Kymlicka, W. (1995). Multicultural citizenship. Oxford: Oxford University Press. Laden, A. S. (2012). Reasoning: A social picture. Oxford: Oxford University Press. Laden, A. S. (2014). The authority of civic citizens. In J. Tully (Ed.), On global citizenship: James Tully in dialogue. London: Bloomsbury Academic. Maaka, R., & Fleras, A. (2009). Mainstreaming indigeneity by indigenizing policymaking: Towards an indigenous grounded analysis framework as policy paradigm. Indigenous Policy Journal, 20(3), 1–22. Moloney, P. (2011). Hobbes, savagery, and international anarchy. American Political Science Review, 105(1), 189–204. Moreton-Robinson, A. (2015). The white possessive: Property, power, and Indigenous sovereignty. Minneapolis, MN: University of Minnesota Press. O’Sullivan, D. (2007). Beyond biculturalism. Wellington: Huia Publishers. Palmer, G. (1995). Where to from here? In G. McLay (Ed.), Treaty settlements: The unfinished business. Wellington: New Zealand Institute of Advanced Legal Studies and Victoria University of Wellington Law Review. Palmer, M. (2008). The Treaty of Waitangi in New Zealand’s law and constitution. Wellington: Victoria University Press.

3

RECOGNISING SOVEREIGNTY AND CITIZENSHIP

73

Referendum Council. (2017). Uluru statement from the heart. https://www. referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_ From_The_Heart_0.PDF. Accessed 5 January 2020. Rousseau, J.-J. (1968). The social contract (G. Cole, Trans.). London: EP Dutton & Co. Sen, A. (1999). Development as freedom. Oxford: Oxford University Press. Simpson, L. (2011). Dancing on our Turtle’s back: Stories of Nishnaabeg re-creation, resurgence, and a new emergence. Winnipeg: Arbeiter Ring Publishing. Supreme Court of New Zealand. (1877). Wi Parata v. Bishop of Wellington. 3 NZ Jur (NS) 72 (SC). Taylor, C. (1994). Multiculturalism and the politics of recognition. Princeton: Princeton University Press. Tully, J. (2000). The struggles of Indigenous peoples for and of freedom. In D. Ivison, P. Patton, & W. Sanders (Eds.), Political theory and the rights of Indigenous peoples (pp. 36–59). Cambridge: Cambridge University Press. Tully, J. (2014). On global citizenship. London: Bloomsbury Academic. Williams, J. (2010). Te Reo M¯ aori (Waitangi Tribunal report). www.tetaurawh iri.govt.nz/assets/MLS-documents/Wai-262-PDF.pdf. Accessed 15 October 2015. Williams, M. (2011). Political institutions. In D. Laycock (Ed.), Representation and democratic theory (pp. 93–118). Vancouver: UBC Press.

CHAPTER 4

Makarrata, Truth and Treaties as Social Contracts

4.1

Introduction

Treaties are social contracts which, ideally, recognise particular and meaningful forms of Indigenous sovereignty and citizenship. They may support reconciliation, through truth-telling, and establish the terms of makarrata or coming together after a struggle (Referendum Council 2017). While the terms of each nation’s coming together with the state is a matter for the parties, there may, as the Victorian Treaty Advancement Commissioner has noted (Hobbs and Williams 2019), be instructive lessons to be drawn from elsewhere, including Canada which is discussed in this chapter, and New Zealand, which is discussed in Chapter 5. It is evident from both these jurisdictions that treaties are relational instruments, framing Indigenous nations’ conceptions of justice and its pursuit. Treaties offer opportunities, but they are not panaceas for the restoration of pre-existing sovereignties. They do not guarantee political equality, and in the Canadian cases particularly, they do not even assume that equality is a reasonable aspiration. They show that recognition can be a weak and unattractive proposition whereas, as the next chapter shows, New Zealand’s Treaty of Waitangi’s possibilities are more far-reaching. M¯aori have never resiled from the idea that when it was signed, in 1840, the Treaty was as an assertion of their own political standing.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 D. O’Sullivan, Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State, https://doi.org/10.1007/978-981-33-4172-2_4

75

76

D. O’SULLIVAN

Though imperfectly implemented, it remains a social contract unparalleled in Australia, where the British Crown and its successor states have not usually sought, and as yet, never concluded agreements to establish the terms of settler presence. This chapter’s discussion of truth telling, as a pre-condition for reconciliation, is followed by an introduction to the concept of social contract and its relevance to thinking about how treaties may develop in Australia. Its discussion of Canadian historical treaties juxtaposes social contract with coercion and uses this juxtaposition to analyse the foundations for treaty-making that are being laid in Victoria and the Northern Territory. It also considers the treaty negotiations begun, but now suspended in South Australia, and the agreement-making in Western Australia which falls short of the requirements of a treaty but is, nevertheless, instructive. The chapter’s final section introduces modern Canadian treaties and shows why these can be limited models of recognition, not contributing to far-reaching Indigenous sovereignty in relation to their own affairs, or as members of the modern state. From this foundation, Chapter 5 sets out the different possibilities that the Treaty of Waitangi raises, before the book’s final chapters show that there is, at least potential within a paradigm of recognition, for Indigenous people to claim a distinctive citizenship based on the authority that resides in their own nations, and which also belongs to them individually, as shareholders in the sovereignty of the state.

4.2 Makarrata: Saying Sorry, ‘Coming Together After a Struggle’ The Uluru Statement from the Heart proposed makarrata as the culmination of our agenda: the coming together after a struggle. It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and selfdetermination. We seek a Makarrata Commission to supervise a process of agreementmaking between governments and First Nations and truth-telling about our history. (Referendum Council 2017, p. 1)

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

77

Makarrata would represent a further and significant step in the reconciliation process initiated by the Human Rights and Equal Opportunities Commission (1997). In 1997, the Commission’s National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families recommended that the state, territory and Commonwealth parliaments say ‘sorry’ for removing an estimated 10–30% of Indigenous children, as part of an explicit policy of breeding out indigeneity, between 1910 and 1970 (Neville 1947). As it is presently explained, the state and territory parliaments accepted the recommendation. However, the Commonwealth Parliament did not, until after a change of government 10 years later. The Commission argued that saying ‘sorry’, as the Canadian Truth and Reconciliation Commission was also to recommend in 2015, and for similar reasons, would lay foundations for more just political relationships, or terms of association. Justice required the community to be reconciled. Reconciliation is grounded in Christian public theology. It parallels the sacramental concept of sorrow, forgiveness and resolve to not repeat wrongdoing so that a fractured relationship between God and penitent may be resolved. In public theology, reconciliation addresses the consequences of social sin (O’Sullivan 2005). At a public level, these theological presumptions of sorrow, forgiveness and resolve to establish just relationships (O’Sullivan 2005) are clear and consistent with makarrata’s aspirations. However, in secular politics, reconciliation’s purposes and possibilities have not always been clear and the case for sorrow may not, in fact, be accepted. The transgression of justice felt by one party may not be accepted as unjust by the other. Even if an injustice is accepted, its ongoing obstruction of just terms of association may not be admitted. Justice is differently understood and self-interest can be among the variables that explains the different ways in which people perceive the demands of justice. The Canadian Reconciliation is Dead movement is a response to these complexities (CBC 2020), which help to explain why the willingness to say sorry may not lead to the ideal of comprehensive public resolve to avoid ongoing transgressions of justice. Nor the creation of new and fair terms of association. Objections to reconciliation on similar grounds are common in Australia, and a measure of recognition’s success, is whether it is able to make just terms of association definable, secure and durable by their acceptability to Indigenous

78

D. O’SULLIVAN

people. Michael Mansell provides contrasting interpretations of reconciliation in Australia. The first explains antipathy, while the second explains reconciliation’s potential as a politics of hope. Reconciliation from the Australian Government’s point of view means that Australians can get on with building their nation and controlling everything including the lives of Aboriginal people… Another version of reconciliation could be resolving the historical and fundamental issues between the two groups [First Nations & settler society]. The settlement would probably be in the form of a treaty and recognizing our right to self-determination. This would create a mutual respect based on the needs and rights of peoples who have been denied their rights for more than two hundred years. Reconciliation is not just a matter of people getting on better. It’s a matter of dealing with the fundamental issues which caused the dispute in the first place. (BIMA 2020)

The Commonwealth Government’s refusal to say ‘sorry’ may have contributed to a public discourse concerned with sorrow but not so attentive to the terms under which people could forgive, and the terms on which a genuine resolve to discontinue contraventions of justice could be established. Both of which are essential components of reconciliation because they give permanent and substantive meaning to sorrow. Reconciliation became prominent during the 1990s, a decade of particular significance in increasing public awareness of the depth of state discrimination against Indigenous peoples. The report of the Royal Commission into Aboriginal Deaths in Custody in 1991 drew attention to widespread racism in the criminal justice system. The Mabo (1992) and Wik (1996) decisions of the High Court of Australia placed Indigenous land rights firmly and prominently on the public agenda. The state and territory parliaments’ apologies to the stolen generations were also significant. For example, in 1997 the Tasmanian Premier Tony Rundle (1997), moved that the Legislative Assembly express its deep and sincere regrets at the hurt and distress caused by past policies under which Aboriginal children were removed from their families and homes, apologises to the Aboriginal people for those past actions and reaffirms its support for reconciliation between all Australians.

In 2020, the removal of Indigenous children from their families remains the principal policy sphere in which opportunities for truth telling has

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

79

occurred. While leading to public apologies, this truth telling has not, in turn, led to substantive agreement making to ensure that the state discontinues its discriminatory policies and practices towards Indigenous peoples, even though resolving to discontinue these transgressions of justice is, in fact, implicit in the concept of apology. Truth is reconciliation’s foundation, but truth does not on its own guarantee justice, because justice is a matter of ongoing political relationships. Makarrata means ‘the coming together after a struggle’ (Referendum Council 2017, p. 1). It requires state admission that the colonial project does, indeed, impose an unjust ‘struggle’. It requires truth telling. In Australia, truth telling has been restricted to the stolen generations’ stories and has not been followed by agreement making that distinguishes New Zealand’s Treaty of Waitangi settlements, for example or even the Canadian modern treaties. Truth telling is unlikely to be ‘appropriated into a benign settler discourse of reconciliation’ as Little (2020, p. 30) fears because confronting the colonial story is a challenge to the moral legitimacy of the colonial state. Rather than being benign, the Makarrata Commission could, for example, constitute a deep and far-reaching challenge to the public memory on which the contemporary state justifies itself. Truth telling draws out transgressions of the rights that people assume that they ought to enjoy. In doing so, it draws out the human values that people hold and the terms of association that people think should provide the basis of a just political order. It makes transparent the values that ought to inform agreement making and, inferentially, the values that people expect the state to admit if the state is to gain legitimacy from Indigenous perspectives. As Little (2020) argues, debates over what constitutes reconciliation and what constitutes recognition are ‘still relatively underdeveloped’ (p. 31). Makarrata’s response is to bring ‘nonWestern ideas into mainstream Western theoretical discussions’ (p. 32). However, this attempt to influence theoretical discussions of Indigenous peoples’ claims to respect and recognition serves an ongoing transformative purpose only if it also confronts the exclusively non-Indigenous presumptions of the modern Australian state; making the state an inclusive entity where those non-Western Indigenous aspirations, values and modes of political expression hold undisputed standing. Substantive belonging means the capacity to help shape public institutions, with the same influential authority as the values and aspirations of any citizen. It is only

80

D. O’SULLIVAN

the unreasonableness of some positions that can explain Little’s (2020) argument that: The pursuit of consensus can only be accomplished through a downgrading of the real suffering and damage over time that has been enacted through a very fractured relationship, and the state is integral to that harm. Without comprehension and acceptance of the harm that has been perpetrated, we are unlikely to be able to find common ground on which to discuss the future. (pp. 47–48)

This is why truth telling is important. As the Canadian Truth and Reconciliation Commission has observed, there is a common minimum level of knowledge about the truth that reconciliation requires. Knowing the truth poses fundamental questions for school curriculums and public broadcasting as, either major sources of public knowledge or major sources of public ignorance. There must be common understandings that colonial states are formed from profound injustice.

4.3

Once Truth Is Told

Once truth is told and it is recognised that there is, indeed an unjust struggle, it is instructive to consider the political values that might, alternatively, underlie political relationships. What kinds of agreements would the state be willing to make? Would it be possible for the state to agree to terms that would make itself morally legitimate in the eyes of Indigenous peoples? What would it mean to admit that Indigenous sovereignties were never ceded and that the state’s political authority comes from the violent dispossession of others? These are difficult political questions, but ‘coming together’ requires that they are addressed. While governments in Victoria and the Northern Territory are considering how they might be answered through treaties, the Commonwealth has shown no comparable interest. Also, in Queensland in 2019, the Government’s extinguishing of native title over lands in the Galilee Basin so that freehold title could be granted to a foreign-owned mining interest (O’Sullivan 2019) showed that government’s philosophical objection to thinking about Indigenous prior occupancy as the basis of agreement making. Indeed, extinguishing native title provides a clear example of Indigenous interests being positioned beyond the legitimate concerns of the

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

81

state. From this example, it may be difficult to contemplate widespread support for a different kind of political order implicit in the arguments for makarrata. It may be unduly hopeful to expect that makarrata will draw ‘a line under the past’ (Little 2020, p. 46). Instead, ‘truth… if it is to be effective… needs to focus on the re-articulation of [the existing] relationships ’ and the construction of new and different relationships (Little 2020, p. 39). This book’s remaining focus is, then, on both the possibilities and constraints that exist within Australia’s liberal democratic political system for the re-articulation of relationships as a precursor to drawing ‘a line under the past’. Makarrata is a political process, ‘the culmination of our agenda… It captures our aspirations for a fair and truthful relationship with the people of Australia and a better future for our children based on justice and self-determination’ (Referendum Council 2017, p. 1). It implies the end of the colonial project, and responds to Little’s (2020) observation that reconciliation, as the concept that framed Indigenous policy debate during the 1990s, may have diverted attention from treaties as a specific policy aspiration. While, the Commonwealth’s parliamentary apology in 2008 was of great personal significance to people who had been removed from their families, it followed the previous Prime Minister John Howard’s persistent rejection of apology as a legitimate concept, an objection which may have been motivated in part by the view that admitting injustice may have supported claims to restitution or recompense. The Minister for Aboriginal Affairs had previously argued that: ‘The Government does not support an official national apology. Such an apology could imply the present generations are in some way responsible and accountable’ (Heron 1996, p. 1). Makarrata is, in contrast, concerned with present generations correcting the consequences of the past and ensuring that a just present is promoted through, for example, Indigenous authority over their own affairs and through voice in the politics of the state. But as Little (2020) explains, and as substantive restitution might demand, ‘there is a connotation that the capacity of the settler colonial state to perpetrate and sustain injustices… must be removed or severely curtailed’ (p. 42). Makarrata must, then, presume the construction of a fundamentally different political order. Minor adjustments to public decision-making processes will be inadequate. The claim to meaningful political voice is not, for example, satisfied by haphazard consultation or marginal Indigenous inclusion in what is otherwise a non-Indigenous political system.

82

D. O’SULLIVAN

A fundamental reappraisal of the meaning of commonwealth may be required to establish, as is reconciliation’s purpose, the conditions for conflict to cease. In this sense, makarrata may be understood as a process that aims to eliminate the causes of conflict. However, the test that makarrata faces is its capacity to contribute to a shared language for working out what just terms of association might look like. Terms such as self-determination, treaty and sovereignty are contested and used with markedly different meanings. Indeed, as Little (2020) explains, these conceptual uncertainties contributed, in 1983, to the Senate Standing Committee on Constitutional and Legal Affairs recommending against a treaty, or other kind of formal agreement. ‘The attitudes of non-Aboriginal Australians towards Aboriginal and Torres Strait Island people and vice versa lie at the heart of the situation and until they can be properly oriented a compact no matter what its form and content will instead only create superficial improvement’ (Parliament of Australia 1983, para. 3.46). There is, as Little (2020) continues: ‘no need to try to fabricate a new consensus; we need to better understand the conflict and the competing demands at stake’ (p. 48). To this end, Hobbs and Williams (2019) see the Makarrata Commission as part of managing ‘the risk that a significant disparity in power, resources, and capacity will affect the process and terms of any agreement’ (p. 228). There is also a need, they argue, for a body ‘empowered to ensure that all participants act in good faith and providing for internal dispute resolution without leading to an abandonment of attempts to reach settlement’ (p. 229).

4.4

Social Contract

If ‘the duty of obedience is owed only to legitimate powers’ (Rousseau 1968, p. 53) it follows that political systems must develop from shared understandings of legitimacy. For Indigenous peoples, legitimacy may require agreement that a just social covenant among all members of an inclusive political community is at least possible. Rousseau’s (1968) underlying condition of political legitimacy is instructive: ‘Since no man has any natural authority over his fellows, and since force alone bestows no right, all legitimate authority among men must be based on covenants’ (p. 53). The alternative to demanding some form of enforceable covenant, perhaps through a treaty, is to surrender one’s freedom, and ‘to renounce freedom is to renounce one’s humanity’ (Rousseau 1968, p. 55).

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

83

Rousseau (1968) argues that the social contract also answers the political question of: ‘How to find a form of association which will defend the person and the goods of each member with the collective force of all, and under which each individual, while uniting himself with the others, obeys no one but himself, and remains as free as before’ (p. 60). How, by extension, may the colonial state protect and serve the interests of all people and ensure that Indigenous people’s liberties as Indigenous are restored? How, in Australia, can the absence of an initial social contract to legitimise the formation of a new society be mitigated? How, too, may a new social contract mitigate against the assimilationist possibilities in Rousseau’s (1968) further argument that the social contract is based on articles of association. Articles which rightly understood, are reducible to a single one, namely the total alienation by each associate of himself and all his rights to the whole community. Thus, in the first place, as every individual gives himself absolutely, the conditions are the same for all, and precisely because they are the same for all it is in no one’s interest to make the conditions onerous for others (p. 60)?

A covenant founded on these terms does, however, pose the risk of a common polity assuming a culturally homogenising character. Though this risk may be mitigated by Rousseau’s (1968) further argument that: ‘since each man gives himself to all, he gives himself to no one; and since there is no associate over whom he does not gain the same rights as others gain over him, each man recovers the equivalent of everything he loses, and in the bargain he acquires more power to preserve what he has’ (p. 61). For Rousseau (1968) the social pact is simply that: ‘Each one of us puts into the community his person and all his powers under the supreme direction of the general will; and as a body, we incorporate every member as an indivisible part of the whole’ (p. 61). No individual surrenders more of his or her liberty than any other. But, for Indigenous people thinking about the just construction of a modern state, it must be understood that liberty is culturally contextualised. Indeed, without culture’s acceptance in public life there can be no liberty, and only assimilationist possibilities in the observation that the social contract forms a public person as ‘the body politic’ (Rousseau 1968, p. 61). Rousseau (1968) argues that in its ‘passive role’ the body politic ‘is called the state, when it plays an active

84

D. O’SULLIVAN

role it is the sovereign; and when it is compared to others of its own kind, it is a power. Those who are associated in it take collectively the name of a people, and call themselves individually citizens, in that they share in the sovereign power, and subjects, in that they put themselves under the laws of the state’ (Rousseau 1968, p. 62). Therefore, the state is established ‘to achieve - the common good’ (Rousseau 1968, p. 69). But if this is not an inclusive common good where Indigenous persons lose no more than they gain through membership in the sovereign, then they are beyond the political. They are left with no capacity to influence the society that has developed over their territories and are excluded from the social contract that non-Indigenous persons have constructed to legitimise the state. This is why it is not possible to alienate one’s sovereignty as a free and informed act, and why there is a political logic to the New Zealand Waitangi Tribunal’s finding that M¯aori did not surrender their sovereignty to the British Crown by virtue of the Treaty of Waitangi (as discussed in the previous chapter). For Rousseau (1968), alienating sovereignty is alienating one’s will which means that interpreting the Treaty as a cession of sovereignty is ‘like giving the name of ‘contract’ to the act of a man who says to another: ‘I give you all my property on the condition that you give me back what you please’ (pp. 144–145). Thus it is reasonable to evaluate the content of proposed treaties in Australia against the criteria implicit in Rousseau’s (1968) argument that ‘any covenant which stipulated absolute dominion for one party and absolute obedience for the other is illogical and nugatory… and does not the single fact of there being no reciprocity, no mutual obligation nullify the act’ (p. 55)? It is instructive to evaluate eighteenth century Canadian treaties from this perspective. The following discussion shows that treaties, if they are meaningful social contracts, presuppose each party’s recognition of the other’s fundamental equality. It is this supposition that makes it difficult, but not impossible, to imagine the conclusion of treaties in Australia.

4.5 Canadian Treaties: Social Contract or Colonial Coercion Under the Treaty of Niagara, in 1764, the Crown promised to restrain governments from measures that would ‘molest’ and ‘disturb’ First Nations. The Treaty followed the Royal Proclamation of 1763 which, although in a qualified way, did assume an on-going Indigenous nationhood. By 1871 ‘even a cursory reading of Treaty 1’, signed in that year

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

85

between the British Crown and the Anishinabe and Swampy Cree nations, ‘reveals a vision for an enduring relationship’ (Tait and Ladner 2018, p. 63), and at federation, in 1867, the nation-to-nation approach to Indigenous policy was ‘entrenched’ (Hobbs and Williams 2019, p. 195). The Proclamation is quoted at length to show that in spite of broader colonial intent, including land alienation, there was reason for First Nations’ people to believe that the Crown intended to promote beneficial trading relationships. And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them. or any of them, as their Hunting Grounds.–We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments as described in their Commissions: as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them. And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson’s Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid. And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking

86

D. O’SULLIVAN

Possession of any of the Lands above reserved without our especial leave and Licence for that Purpose first obtained. And We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements. And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do with the Advice of our Privy Council strictly enjoin and require that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where, We have thought proper to allow Settlement: but that. if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie: and in case they shall lie within the limits of any Proprietary Government they shall be purchased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose: And we do. by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of our Colonies respectively where such Person shall reside and also give Security to observe such Regulations as We shall at any Time think fit by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade. (The Royal Proclamation, October 7, 1763 [2020])

During Treaty 1 negotiations, the British authorities clearly presented a mutually beneficial agreement: ‘Your Great Mother wishes the good of all races under her sway. She wishes her red children to be happy and

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

87

contented. She wishes them to live in comfort’ (Lieutenant Governor Archibald, cited in Tait and Ladner 2018, p. 78). Further: Her Majesty is perfectly willing and anxious to provide for the welfare of her Indian subjects… The Government will give to the Indians, reserves amply sufficient. The different bands will get quantities of land as will be sufficient for their use in adopting the habits of the white man, should they choose. (Indian Commissioner Simpson, cited in Tait and Ladner 2018, p. 78)

Yet, negotiations took place amidst a distinct power imbalance. British settlement was well established. Its continuance was not dependent on First Nations’ agreement. First Nations’ subjecthood of the British Crown was assumed, and based on the prior assumption of British sovereign authority. The claim to sovereignty rationalised the view that land no longer belonged inherently to the First Nations. Reserves would then be ‘gifted’ from the Crown’s benevolence. The foundation was nevertheless laid for ongoing, though substantially diminished, territorially based nationhood. There was certainly ‘no vision of poverty or dependency’ (Tait and Ladner 2018, p. 79). For example, Treaty 1 provided for the payment of annual annuities. However, from the late 1800s legislation was enacted to override the provisions of the 11 numbered treaties signed between 1871 and 1921. Nationhood was, and still is, undermined by the Crown’s presumption of ‘the right to define Aboriginal and Treaty rights according to its own purposes, thereby missing the entire intention of the treaties’ (Tait and Ladner 2018, p. 65). Ultimately, there was no social contract of substantive value. Social contracts were attempted, but their failure showed the deep incompatibility between this concept of mutual recognition and colonialism. Their failure suggests, also, that for modern treaties to work in Australia, the quid pro quo for Indigenous recognition of the legitimacy of the state is the setting aside of states’ assumptions of their own sovereignty as absolute and hegemonic in relation to Indigenous people and their political communities. In Canada, colonialism creates dependence on the Crown and explains Tait and Ladner’s (2018) concern that the failure of treaty relationships arises from the ‘unilateral exercise of state power’ and state defiance of the

88

D. O’SULLIVAN

‘sovereign nation-to nation relationships and fiduciary obligations established through treaties’ (p. 64). Modern treaties, which are discussed later in this chapter, may moderate that power, but they do not comprehensively curtail it. The continual assertion of state sovereignty as an hegemonic authority is the principal explanation. For example, while Canadian courts have insisted that the ‘honour of the Crown’ (Haida Nation v British Columbia [Minister of Forests] 2004, paras. 16–19), must be upheld in the settlement of treaty breaches, the Canadian state routinely appeals decisions of lower courts to avoid treaty settlements or to avoid admitting the rights and capacities of citizenship in relation to the care and protection of First Nations’ children, as an ongoing and high profile example (Blackstock 2011). The honour of the Crown also creates a duty to consult Indigenous peoples over proposed policy measures affecting them (Haida Nation v British Columbia [Minister of Forests] 2004). However, the duty to consult does not imply a duty to negotiate. Nor does it imply an obligation on the state to relinquish the presumption of senior partner. A presumption that would be diminished if negotiation became the normative process of engagement. Indeed, in a case in 2009, where Canada refused to make surplus Crown land available for treaty settlement, it told the Federal Court that: if we can’t reach an agreement [through consultation] we can’t reach accommodation, well, we’ll then just proceed to sell the property to the Canada Land Company. We’ll do whatever it is that we have to do. If my learned friends have an objection at that point to our transferring the property because the consultation in their opinion was not thorough enough or satisfactory, it’s open to them to bring the matter back to the court for review. (Federal Court of Canada 2009, 982, p. 38)

Tait and Ladner (2018) contrast this example of Canadian hostility to negotiation, with the Waikato Treaty of Waitangi settlement in New Zealand, which returned significant tracts of surplus Crown land to contribute to the restoration of the Waikato economic base. Although the land that was returned was a small proportion of that alienated, it does demonstrate the Crown’s acceptance that land confiscation was unjust and a direct cause of ongoing economic deprivation (New Zealand Government 1995). The Treaty of Waitangi, and the ways in which it may be instructive to Australian treaty negotiations, and the ways in which it

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

89

is interpreted as a social contract, is discussed in this book’s remaining chapters.

4.6

Australian Treaties as Social Contracts

The Canadian experience affirms Moreton-Robinson’s (2009) argument that the social contract model of political arrangement and political legitimacy means that settler states find it difficult to imagine that two or more polities could co-exist in the same territory (Strakosch 2019). However, as there is no social contract to contravene in Australia, the state uses public policy rather than constitutional arrangements to target ‘Indigenous political difference by attempting to deny, destroy or absorb it. At this projected moment of Indigenous political extinguishment, settler sovereignty can finally become what it already claims to be - unified, authoritative, universal and neutral’ (Strakosch 2019, p. 120). A state unified in its cultural homogeneity was the stated intent of nineteenth to mid-twentieth century policies such as the stolen generations in Australia, residential schools in Canada, and native schools in New Zealand, for example. In 2020, certain state policies in Australia, such as the practice of school assessment and qualifications being available only in the English language retain assimilationist assumptions, even though assimilation is no longer an official state objective, and even though for many Indigenous students English is not a first language. The abandonment of assimilation as, at least an official goal, does however create opportunities for Indigenous citizens to pursue alternative possibilities including, in Australia, through treaties as social contracts. The assimilationist potential in Rousseau’s (1968) presentation of the social contract is balanced by the possibilities of differentiated liberal citizenship, as an intended outcome of a just and genuine social contract. A contract drawing on the recourses that exist in political theory and political practice, for challenging exclusive and homogenising pressures and presumptions. Concepts such as citizenship, sovereignty, democracy and self-determination may be used to develop treaties in Australia as social contracts to include Indigenous peoples, consciously, systematically and substantively, in a newly forged and morally legitimate nationhood. For example, Temin (2018) explains Deloria’s argument that treaties are instruments that ‘might function as a “pledge of faith between groups” embedded in ongoing entanglements, but only by shifting away from the politics premised on disavowal’ (p. 372). Instead, coming together after a

90

D. O’SULLIVAN

struggle requires that disavowal is acknowledged. The struggle’s ongoing consequences must also be acknowledged which, in turn, means that there is a moral imperative to examine opportunities for restitution as part of a social contract. There are limits to restitution, but these should not be defined by the colonial state alone. A social contract would require Indigenous peoples and the state to engage as equals in determining what constitutes their ongoing just terms of association. Treaty settlements provide that opportunity to some extent in New Zealand, and the Makarrata Commission and treaties that are proposed in Australia, may serve that same purpose. Political agreements are always subject to re-negotiation, whereas selfdetermination which treaties would presumably affirm, is a perpetual right and requires legal certainty. To this end, an Australian Constitutional amendment to insert a clause akin to that in the Canadian constitution may be necessary to distinguish treaties, as enduring agreements. S. 25 of the Canada Act 1982 provides that: The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including (a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and (b) any rights or freedoms that may be acquired by the aboriginal peoples of Canada by way of land claims settlement. (Government of Canada 1982)

s. 35(1) of the Act provides that: ‘The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed’ (Government of Canada 1982, s. 35(1)). It still, however, remains that in Australia treaty negotiations proceed from an extreme power imbalance and approaching these negotiations as equals requires significant recognition by the state; recognition that each is entitled to the same consideration in working out the just terms of a new social order to guide future relationships. While self-determination means that Indigenous nations will not each seek the same things from treaties, Hobbs and Williams’ (2019) argument that national minimum standards ought to be developed is significant for its potential contribution to a more even negotiating relationship. The

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

91

UN Declaration on the Rights of Indigenous Peoples may contribute to such standards and provide reference to internationally accepted normative principles, as a morally just starting point, supported by reference to agreements elsewhere like the Treaty of Waitangi and Canadian treaties. The Declaration’s 46 articles codify the right to self-determination in matters as broad as land rights, health, education, criminal justice, broadcasting and economic empowerment. The right to culture, or the right to be Indigenous is a theme that underpins the rights that the Declaration affirms in each of these areas. In an article paralleling the Treaty of Waitangi’s affirmation of the M¯aori right to independent authority over their own affairs, including culture and land and other resources, as well as affirming distinctive participation in the affairs of the state, the Declaration sets out an overarching principle which provides the political values and structure from which other rights are realised. As a general principle, treaty making is being supported by Victoria and the Northern Territory. It has been considered by South Australia and Queensland and a comprehensive settlement akin to New Zealand’s Treaty of Waitangi settlements, but described by Hobbs and Williams (2019) as effectively a treaty, has been negotiated in Western Australia.

4.7

Australia: Treaty Negotiation

The agreements being pursued in Victoria and the Northern Territory potentially fill a moral void left by the Commonwealth. They also satisfy the presumption that as the initial colonial powers, treaties with these tiers of government is both proper and necessary. Negotiations require that treaties are understood as instruments of mutual recognition. But, as this chapter explains, it is too early to assess the depth of such recognition in Victoria and the Northern Territory where negotiations are most advanced. On the other hand, it is clear that neither the governments of Queensland nor South Australian enjoy this conceptual understanding. For example, Queensland committed to a ‘conversation’ about treaty making in July 2019, yet in September that year, it extinguished one Indigenous nation’s native title over large tracts of land in the Galilee Basin so that the construction of the Adani coal mine could commence (see O’Sullivan 2019). Secure land rights are foundational to the political authority that Indigenous treaty negotiators are likely to pursue. They were, for example, central to the Buthera Agreement reached in 2018 as the

92

D. O’SULLIVAN

first step towards a treaty between South Australia and the Narungga Nation Aboriginal Corporation (Government of South Australia 2018). However, after some progress South Australia discontinued negotiations following a change of government later in 2018 (discussed below). Prior to the change of government, South Australia claimed that the Agreement led to the appropriation of public funds to economic development and language revitalisation. These may be reasonable outcomes of a treaty, but do not in themselves constitute recognition of inherent Indigenous political authority. Nor are they policy measures necessarily distinguishable from public services that might be available to Indigenous peoples as rights of citizenship. However, the development of the Agreement’s principles into enforceable measures of political authority does appear within the scope of further negotiations. Significantly, the Agreement also shows that treaties need not threaten the sovereign authority of the state, fracture the body politic, nor give Indigenous peoples privilege or advantage over other citizens. South Australia and the Narungga Nation agreed that: D. Section 2 of the Constitution Act 1934 (SA) sets out (among other things) that the Parliament on behalf of the people of South Australia: (a) Acknowledges that the making of constitutional instruments by the Parliament and monarch of the United Kingdom of Great Britain providing for the governance of South Australia and the making of laws for peace, order and good government occurred without proper and effective recognition, consultation or authorisation of Aboriginal peoples of South Australia; and (b) Acknowledges and respects Aboriginal peoples as the State’s first peoples and nations and as traditional owners and occupants of land and waters in South Australia; and (c) Acknowledges that Aboriginal peoples have endured past injustice and dispossession of their traditional lands and waters. Section 2 of the Constitution Act 1934 (SA) is stipulated to have no legal force or effect. E. Both parties wish to strengthen the relationship between the Narungga People and the State, and for their relationship to embody and enable the following outcomes:

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

93

1. The State engages with the Narrungga People in a manner respectful of Narrungga People and their inherent dignity; 2. Narrungga People enjoy a sustainable economy deriving from diverse sources; 3. The State respects the rights of Narrungga People to maintain their culture including their connection with sites, their history, tangible and intangible property, ceremony, dance, song, language, ways of teaching and learning and their right to develop and evolve their culture; and 4. Each party communicates honestly with the other and contact itself in all dealings with the other party in good faith. F. Under this Agreement the parties intend to establish a respectful and constructive relationship to assist Narrungga People to secure cultural, social and economic well-being (Government of South Australia 2018, pp. 1–2). However, as a measure of the depth of contest over the idea of treaties per se, and this Agreement specifically, the new Liberal party Premier, Steven Marshall, argued that state government treaties were ‘expensive gestures’ and better left for the federal government (cited in Hobbs and Williams 2019, p. 216). This argument was made with the understanding that the federal government had no such interest. The opposition Liberal/National party coalition in Victoria made the same argument. The government’s response was simply: ‘Why would we wait for someone else to do it’ (cited in Hobbs and Williams 2019, p. 211)? South Australia’s position shows ‘the fragility of existing treaty processes’. It also shows that ‘treaties are political agreements that require ongoing support from both sides. Only political and moral pressure, not legal obligation, can push participants to the table’ (Hobbs and Williams 2019, p. 217). This political reality underscores the importance of liberal democratic forms that are inclusive and structured to consider moral arguments, not just weight of numbers. Australian democracy does not automatically operate inclusively or with the requirement for reasoned argument, which may explain why no treaty has been concluded more than 200 years into the colonial project, and may also reflect the systematic exclusion of Indigenous voice from democratic decision-making. In contrast, in the Northern Territory, the government has appointed a Treaty Commission to lead consultations among Indigenous peoples,

94

D. O’SULLIVAN

and conduct research, on the negotiation process for a treaty or treaties (Northern Territory Treaty Commission 2020). The government has formally accepted that these discussions will proceed on the assumption that Indigenous nations have not ceded sovereignty over their lands, seas and waters (Hobbs and Williams 2019). A politically and constitutionally important question that follows is how, in practical and substantive terms, Indigenous people will then recognise the legitimacy of the state, and the sovereign capacities that each should reasonably retain. Recognising the terms on which the state will retain the authority that it claims while simultaneously discontinuing the usurpation of Indigenous authority is the central, and potentially deeply contentious point, that treaty negotiations need to resolve. It is only from the presumption that this tension ought to be resolved that treaties can serve the dual purposes of empowerment and reconciliation. Purposes which both government and Indigenous nations have accepted. In an article published by the Northern Land Council, Hobbs (2018) explained what treaties could mean in practice: A treaty is a special kind of agreement that must satisfy three conditions. First, it must recognise Aboriginal people as a distinct community as well as acknowledge the deep historic and contemporary injustices that invasion has caused. Second, a treaty is a political agreement that must be reached by way of a fair process of negotiation between equals. Third, a treaty must contain more than symbolic recognition, or service delivery provisions. (Hobbs 2018, What is a treaty, and what outcomes are possible?, para. 1)

Hobbs’ expectations of the substance of treaties are further expressed with reference to international examples to show that they are not extreme or unusual expectations. They are consistent with conceptions of justice prevailing in other jurisdictions. The specific outcomes that a treaty can entail vary widely, reflecting the different aspirations of negotiating parties across the globe. Based on the aspirations of Aboriginal people in the Northern Territory, as recorded in the Barunga, Kalaringi and Uluru Statements, as well as the United Nations Declaration on the Rights of Indigenous Peoples and the contemporary treaties negotiated in Canada, a treaty in the Territory might include terms relating to: transfer of land, and rights over resources and cultural heritage; financial compensation to satisfy outstanding claims and secure autonomous functioning of services within Aboriginal lands; and, some

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

95

degree of self-government. This may amount to powers similar to local government, or could potentially go further and include the administration of justice, family, and social services, education, and healthcare. Importantly, however, while this could recognise the inherent sovereignty of Aboriginal nations, a treaty will be subject to Australian law. Commonwealth laws will therefore apply where a conflict or inconsistency arises with a treaty or Aboriginal law. (Hobbs 2018, What is a treaty, and what outcomes are possible?, para. 2)

In Victoria, the government is preparing for treaty negotiations as part of what the Minister for Aboriginal Affairs called ‘the broader selfdetermination agenda’ (cited in Hobbs 2019, p. 180). By early 2017, 7500 people had participated in discussions about the form and purpose of treaties, and the process is to continue under the leadership of a 32-member First Peoples’ Assembly (Hobbs, p. 180). It is significant, that the preliminary consultations among Victoria’s Indigenous peoples, were arranged by an independent consultancy ‘to provide structural independence from government’ (Hobbs and Williams 2019, p. 107). Structural independence from the party holding the greater political strength may promote the idea that the Treaty is not the state’s ‘gift’ to Indigenous people. It ensures that there cannot be state interference as the Indigenous population considers the merits of treaties and the matters of substance that they should address. Ideally, independence allows Indigenous discussions to proceed with reference to their own determinations of what is important. It allows Indigenous nations to prepare to engage with the state as equal participants in working out the just terms of association that should inform their ongoing relationship. The government is providing financial support for the First Peoples’ Assembly which will continue to operate beyond the conclusion of treaties to provide a Voice to the Victorian Parliament (Hobbs and Williams 2019). However, in spite of these ideals the negotiations are proceeding with some acrimony as the Yorta Yorta Aboriginal Corporation, one of 11 groups directly represented on the Assembly has declined to assume its seat because its members are not ‘Aboriginal Victorians’ as the enabling legislation asserts, but Yorta Yorta, which as an independent sovereign entity, prefers to negotiate an agreement with the Commonwealth as the entity entitled to conclude international agreements (Yorta Yorta Nation Aboriginal Corporation 2019, para. 2).

96

D. O’SULLIVAN

Notwithstanding objections such as these, Hobbs and Williams (2019) understand the agreement between the Noongar nation and the government of Western Australia as a treaty—the South West Native Title Settlement. While like the modern Canadian treaties (discussed in the following sections of this chapter), the Noongar Agreement, retained characteristics more akin to New Zealand’s Treaty of Waitangi settlements than to a treaty itself. This $1.3 billion agreement covered the return of alienated land and measures related to governance and cultural heritage (Hobbs 2018). Although not called a treaty and reached under the Native Title Act 1993, Hobbs and Williams (2019) argue that its ‘size and scope indicate that it is Australia’s first treaty’ (p. 205), and that it contains the political attributes of a treaty. The Settlement: ‘was reached via a process of political negotiation respectful of each party’s equality of standing, and settles Noongar and Non-Indigenous claims by recognising and establishing a limited form of self-governance, as well as providing financing for the autonomous operation of that administration’ (p. 205). The Premier, Colin Barnett, described its acceptance by the Noongar people as an ‘extraordinary act of self-determination‘ and the deputy Leader of the Opposition, Roger Cook, told Parliament that by its nature the ‘agreement is in fact a classic treaty’ (cited in Hobbs and Williams 2019, p. 205). However, it is ultimately only the political authority that it recognises that may give the Settlement the attributes of a treaty. For example, the Settlement recognises traditional ownership of the land and establishes legal entities for Noongar governance of the Settlement’s proceeds (South West Aboriginal Land and Sea Council 2020). It is a significant agreement which makes an important contribution to Noongar self-determination, but it is not clear that such self-determination or recognition of traditional ownership is protected in perpetuity and these, as the following chapters show, are essential attributes of a treaty as an instrument where each party recognises the other’s substantive political authority. Nor does the Settlement provide for distinctive and meaningful Noongar citizenship of the state which is an important term of the Treaty of Waitangi, for example, and an essential constituent of the right to self-determination. This is important because Indigenous presence, as an expression of meaningful citizenship, means that settler populations cannot, by weight of numbers, disregard the continuing political authority of Indigenous peoples.

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

97

4.8 Modern Canadian Treaties: Lessons from British Columbia In Canada, Indigenous affairs are matters of overlapping jurisdiction; which is reflected in the tripartite nature of modern treaties. Modern treaties respond to the Supreme Court’s finding in 1973 that Aboriginal title was still recognisable in Canadian law (Supreme Court of Canada 1973), and there is a positive correlation between modern treaties and Indigenous household income (Pendakur and Pendakur 2018). Since 1973, in British Colombia by way of example, 26 land claims and four self-government agreements have been concluded. Approximately 100 further treaties are under negotiation (Hobbs and Williams 2019). However, as of 2018, only 61 of British Columbia’s 203 First Nations were in negotiation, to show the fraught nature of mutual recognition and the political concessions it may involve. The British Columbian treaties are particular to the geo-politics of a defined region, and are constitutionally protected Acts of both the federal and provincial parliaments (Pendakur and Pendakur 2018). They are negotiated ‘because communities have demanded the right to selfdetermination, either in whole or in part’ (Pendakur and Pendakur 2018, p. 141), and as self-government agreements they are concerned with how Indigenous nations will govern their affairs and with the responsibilities that they will assume. Yet, for some Indigenous scholars and political actors, mutually satisfactory arrangements are not possible. Belief systems and political aspirations are simply too different. Treaties require that Indigenous nations recognise the legitimacy of the state. Some nations do not wish to offer that recognition. Nor do they see potential for the advancement of their own self-determination under a liberal political framework. However, as it was set out in Chapter 3, this book takes a different perspective, grounded in its view of sovereignty as a political concept capable of more flexible interpretation than the normative British colonial view of an insoluble state authority under which Indigenous authority is fully extinguished. Its view of sovereignty is as an authority that is relative and relational to that of others. It is not located in one place but dispersed across the political system, which means that political power is either possible or constrained from wherever authority is exercised. State sovereignty is justly responsive to the sovereign authority of the Indigenous nation, and at least to some degree modern Canadian treaties affirm this presumption.

98

D. O’SULLIVAN

The Nisga’a Treaty, which took effect in 2000, is British Columbia’s first modern treaty. The Treaty and its associated agreements provided for: • • • • • • • • • •

$196.1 million dollars (in 1999 dollars); 2019 square kilometers of land; an annual allocation of salmon; entitlements to harvest other fish; allocations of moose and other wildlife species; $11.8 million to increase participation in the general commercial fishery; a Lisims Fisheries Conservation Trust (to which the Nisga’a Nation has contributed $3 million); a water reservation for domestic, agricultural and industrial purposes; authority to operate our own government, and the ability to make laws; and, funding to deliver health, education, and social services to our citizens and other area residents (Nisga’a Lisims Government 1998, Key Features of the Treaty, para. 2).

The Treaty has allowed the resumption of Nisga’a ‘control over the governance of ourselves and our own lands’ and its significance is distinguished by a ‘small list’ of milestones (Nisga’a Lisims Government 1998, About, para. 2). This list is quoted in full to show the extent of the political capacities that have been restored to the Nisga’a nation, and to illustrate the kinds of political capacities that may be useful to other Indigenous nations, internationally, as expressions of their own self-determination. • Village roads improved. • Highway connection to Gingolx. • Fishery Bay—we’ve been given direction not to provide easy access into Fishery Bay. Nisga’a Fisheries Committee is the Committee to look at possible improvement. • Economic development—this was developed early into the Treaty which eventually led to the Business Development Fund Act to provide the Nation with opportunities in economic development. • Economic development funding to the Village Governments and Urban Locals.

4

• • • • • • • • •

• •

• • •

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

99

Training dollars to the Village Governments and Urban Locals. Tax rebate which is shared amongst the Village Governments. Nisga’a Youth Councils have been developed and funded by NLG. Community Preventative Program fund was created on savings from Nisga’a Child and Family Services. This money can fade away as NCFS moves forward. Management Information System funding is provided to each Village Government. enTel—bringing high-speed Internet connectivity to the Nass and beyond. Urban home program—renovation grant and new home purchase grant. Sports and Recreation—$100,000 in our budget for Sports and Recreation. We will most likely revisit this in our final budget exercise. Nisga’a Elections, whether it be general or by-elections, we no longer need to go to Canada/BC to have our elections. Citizens can go to the NADRB if there are complaints about our elections. During one election one whole Village Government was removed, the Executive had to address this and a joint decision was made to appoint individuals to oversee the operations of the Village. Code of conduct for elected people. Since 2000 we have had to remove 2 individuals. Nisga’a Commercial Group (NCG) is owned 100% by the Nisga’a Nation. One of most difficult things to do was sever the ties of economic development from government—this needed to be done to avoid conflict. Nisga’a Foundation—The Nisga’a Foundation was established by NLG. We will move forward to establish a Board of Directors to oversee the Foundation and to secure funding. Establishment of the Nisga’a Commercial Opportunity Fund— Contributions to this Fund include Canada $5.5 million, BC $5.5 million, for a total of $11 million. Shortly after effective date, the Nisga’a Nation authorized an allocation of $3 million to assist with the fishery fund. That fund is now well over $13 million (Nisga’a Lisims Government 1998, About—accomplishments and benefits of Nisga’a Treaty, para. 5).

100

D. O’SULLIVAN

A further example is the Maa Nulth Treaty signed by the Huy-ay-aht First Nations, Canada and British Columbia, for implementation from 2011. The Maa Nulth Treaty recognised Maa-nulth ownership of specified lands and an ‘inherent right to self-government’ (Indigenous and Northern Affairs Canada 2009, p. 1). This right could be exercised in relation to natural resources and the administration and provision of health and education services, for example. However, in the event of conflict between Maa-nulth laws and those of British Columbia or Canada, it is settler laws which would prevail, thus cementing the colonial relationship (Indigenous and Northern Affairs Canada 2009). Also, while admitting Maa-nulth rights of Canadian citizenship and setting out their aboriginal rights under s. 35 of the Constitution, the Treaty absolves Canada and British Columbia of responsibility for any new claims that may arise on the basis of information that is not presently known but may, at some future point, come to hand (Indigenous and Northern Affairs Canada 2009). Under this Treaty, Canada and British Colombia acknowledged ‘the perspective of the Maa-nulth First Nations that harm and losses in relation to their aboriginal rights have occurred in the past and express regret if any actions or omissions of the Crown have contributed to that perspective’ (Indigenous and Northern Affairs Canada 2009, p. 1). This language is quite different from that used in New Zealand treaty settlements where a more forthright admission of wrong-doing is common. Settlements for breaches of the Treaty are made by Act of Parliament and, for example, the Waikato iwi’s settlement established that: The Crown recognises that the lands confiscated in the Waikato have made a significant contribution to the wealth and development of New Zealand, whilst the Waikato tribe has been alienated from its lands and deprived of the benefit of its lands. (New Zealand Government, Waikato Raupatu Claims Settlement Act 1995. Part I, section 6 (5))

And that: The Crown seeks on behalf of all New Zealanders to atone for these, acknowledged injustices, so far as that is now possible, and… to begin the process of healing and to enter a new age… of co-operation. (New Zealand Government, Waikato Raupatu Claims Settlement Act 1995. Part I, section 6 (6))

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

101

Canada, in contrast, does not require the formal acknowledgement of injustice to conclude a treaty (Morgan and Castleden 2018), meaning that negotiation is not a process of reconciliation, even though modern treaties are intended to ‘define new relationships’ (Morgan and Castleden 2018, p. 309) and that governments understand modern treaties as the ‘highest expression of reconciliation’ (BC Treaty Commission 2016, p. 2). An alternative perspective is that the theoretical foundations of a politics of recognition are set aside when the state exercises a unilateral capacity to ‘decide what aspects of the claim to recognize’ (Mack 2009, p. 63), and when even in a process of reconciliation it allows coercive power to trump reason. For example, the requirement that overlapping claims in relation to land traditionally shared between First Nations has brought new tensions into long-standing Indigenous political relationships (Morgan and Castleden 2018). The same conclusion, that this is an example of colonial imposition through a process that is ideally and theoretically concerned with diminishing colonial power, may be drawn from the process that the state has established for assisting First Nations to cover the costs of preparing their claims. First Nations may fund these costs of negotiation through loans from the Federal government, which as Morgan and Castleden (2018) point out, is often the body that delays negotiations, thus increasing the cost of the process. The burden of these loans, just in 2015, was $466 million (Morgan and Castleden 2018). Colonial power is thus reinforced, and a dependent relationship upheld. First Nations must pay the coloniser to negotiate a different kind of relationship. The British Columbian experience foreshadows some of the possibilities and limits of treaty negotiations in Australia, and provides a contrast with New Zealand where the Treaty of Waitangi is neither a land settlement agreement nor commonly conceptualised as setting out the terms of nation to nation relationships between M¯aori nations and the settler state. The Treaty of Waitangi is not an instrument intended to settle conflict, in the fashion of the modern Canadian treaties. Nor is it a makarrata—a coming together after a struggle. It was instead an agreement that set out the just terms of association on which British settlement could proceed. It establishes spheres of political authority, and it is the contest over these spheres of authority and how previous breaches of the agreement might be settled that distinguishes contemporary Treaty policy in New Zealand. But the Treaty of Waitangi was and remains a social contract, even if its terms are unsettled.

102

D. O’SULLIVAN

As in British Columbia, treaties in the United States are understood as the basis of nation-to-nation relationships. Hendrix et al. (2020) argue that this explains the greater independence that First Nations enjoy, relative to Indigenous nations in Australia, in matters such as health, education and social service delivery. For example, First Nation governments are recognised as legal entitities with which the US government may contract to provide services to citizens in their own ways, according to their own means and for their own purposes. These contracts take the form of long-term compacts and provide coherent policy frameworks to contrast with the Australian approach which is distinguished by fragmentation, shifting policy goals and often, as this book shows, the exclusion of Indigenous people and organisations from policy discussion and from opportunities to lead policy implementation. Treaties, however, mean that governments know to whom they should talk. There is a nation they have recognised as a site of political authority, and a recognised people to whom the right to self-determination belongs. These treaties recognise, too, that there are attributes of sovereignty belonging to First Nations, therefore the political relationship cannot presume that Indigenous people are subservient to the state. At the same time, treaties are routinely breached and do not provide perfect models for Australian consideration. But the claim to nationhood that they acknowledge is instructive.

4.9

Conclusion

Ideally, treaties are instruments of reconciliation, establishing the political relationships that will endure once Indigenous nations and states have come together after a struggle. Their efficacy, however, requires that each party recognises the other as a legitimate political entity. Treaties, and recognition, explicitly reject the presumptions of terra nullius , and they reject the presumption that Indigenous peoples’ authority over their own affairs is extinguished by the sovereignty of the state. Though treaties may only offer Indigenous peoples a limited form of recognition, their potential includes wide and substantive reconfiguration of how contemporary politics operates in post-settler states like Australia. Australia presently lacks a social contract to rationalise itself as a cohesive and inclusive political community, where public sovereignty occurs by all people’s consent. This lack is the outcome of political mis-recognition

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

103

and explains Indigenous peoples’ collective location on the periphery of Australian nationhood. This chapter has provided some insight into the limits and possibilities of treaties as instruments of recognition, based on an introduction to how these agreements work in Canada, and on an introduction to the early stages of their negotiation in Australian jurisdictions. The ultimate test of a treaty’s proposed content is whether its scope is sufficient to allow Indigenous people to conclude that the agreement makes the state morally worthy of their recognition. It means that treaties cannot be instruments designed by states to coerce Indigenous people to accept the inevitability of an hegemonic relationship. As an instrument of reconciliation, a treaty should, ideally, set out the terms of a durable and non-colonial politics. The following chapter shows that at the signing of the Treaty of Waitangi, in 1840, the Chiefs of the United Tribes of New Zealand expected such a relationship, whereas the British Crown saw the instrument as a cession of sovereignty. These two perspectives remain in conflict. The Treaty’s practical significance has increased and evolved over time, but the proper nature of its influence is unsettled. However, the M¯aori expectation that it should and can provide the basis of an ongoing non-colonial politics, remains strong which means that it is a useful point of comparison as Australia works out what substantive recognition might actually mean.

References BC Treaty Commission. (2016). Treaty negotiations, reconciliation, and the UN declaration. Vancouver: BC Treaty Commission. BIMA. (2020). Justice = reconciliation. https://989fm.com.au/listen/smashingt hemyths/reconciliation-justice/reconciliation-justice/. Accessed 20 August 2020. Blackstock, C. (2011). Wanted: Moral courage in Canadian child welfare. First Peoples Child & Family Review: An Interdisciplinary Journal Honouring the Voices, Perspectives, and Knowledges of First Peoples, 6(2), 35–46. CBC. (2020). Reconciliation is dead and it was never really alive. https://www. cbc.ca/news/canada/toronto/jesse-wente-metro-morning-blockades-indige nous-1.5475492. Accessed 20 August 2020. Federal Court of Canada. (2009). Brokenhead First Nation v. Canada, 982. Government of Canada. (1982). Constitution Act 1982. www.laws-lois.justice.gc. ca/eng/Const/page-15.html. Accessed 10 July 2020.

104

D. O’SULLIVAN

Government of South Australia. (2018). Buthera agreement. https://www.dpc. sa.gov.au/responsibilities/aboriginal-affairs-and-reconciliation/aboriginalland-and-business/buthera-agreement. Accessed 10 July 2020. Haida Nation v British Columbia (Minister of Forests). (2004). 3 SCT 511. https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/2189/index. do. Accessed 11 February 2018. Hendrix, B. A., Delaney, D., Witmer, R. C., Moran, M., Sanders, W., & Ganter, E. (2020). Building capacity in indigenous governance: Comparing the Australian and American experiences. Australian Journal of Public Administration, 79(1), 26–40. Heron, J. (1996, August 21). Letter to Father Frank Brennan. Hobbs, H. (2018). A territory treaty. https://www.nlc.org.au/media-publicati ons/a-territory-treaty. Accessed 10 July 2020. Hobbs, H. (2019). Treaty making and the UN declaration on the rights of Indigenous peoples: Lessons from emerging negotiations in Australia. The International Journal of Human Rights, 23(1–2), 174–192. Hobbs, H., & Williams, G. (2019). Treaty-making in the Australian federation. Melbourne University Law Review, 43, 178. Human Rights and Equal Opportunities Commission. (1997). Bringing them home: Report of the national inquiry into the separation of aboriginal and Torres Strait islander children from their families (1997). Sydney: Human Rights and Equal Opportunities Commission. Indigenous and Northern Affairs Canada. (2009). Maa Nulth Agreement— General overview. https://www.aadnc-aandc.gc.ca/eng/1100100022623/ 1100100022643. Accessed 11 July 2020. Little, A. (2020). The politics of Makarrata: Understanding Indigenous-settler relations in Australia. Political Theory, 48(1), 30–56. Mack, J. C. (2009). Thickening totems and thinning imperialism. University of Victoria. Morgan, V. S., & Castleden, H. (2018). “This is going to affect our lives”: Exploring Huu-ay-aht First Nations, the Government of Canada and British Columbia’s new relationship through the implementation of the Maa-nulth Treaty. Canadian Journal of Law and Society, 33(3), 309–334. Moreton-Robinson, A. (2009). Imagining the good Indigenous citizen: Race war and the pathology of patriarchal white sovereignty. Cultural Studies Review, 15(2), 61. Neville, A. (1947). Australia’s coloured minority. Sydney: Currawong Publishing Company. New Zealand Government. (1995). Waikato Raupatu Settlement Act 1995. www.legislation.govt.nz/act/public/1995/0058/latest/DLM369893. html. Accessed 11 July 2020.

4

MAKARRATA, TRUTH AND TREATIES AS SOCIAL CONTRACTS

105

Nisga’a Lisims Government. (1998). Understanding the treaty. https://www.nis gaanation.ca/understanding-treaty. Accessed 10 July 2020. Northern Territory Treaty Commission. (2020). About us. https://treatynt.com. au/about-us. Accessed 10 July 2020. O’Sullivan, D. (2005). Faith politics and reconciliation: Catholicism and the politics of indigeneity. Adelaide: The Australian Theological Forum. O’Sullivan, D. (2019). Indigenous people no longer have the legal right to say no to the Adani mine—Here’s what it means for equality. https://theconversat ion.com/Indigenous-people-no-longer-have-the-legal-right-to-say-no-to-theadani-mine-heres-what-it-means-for-equality-122788. Accessed 9 July 2020. Parliament of Australia. (1983). Two hundred years later …: report by the Senate Standing Committee on constitutional and legal affairs on the feasibility of a compact or ‘Makarrata’ between the Commonwealth and aboriginal people. Canberra: Commonwealth of Australia. Pendakur, K., & Pendakur, R. (2018). The effects of modern treaties and opt-in legislation on household incomes in aboriginal communities. Social Indicators Research, 137 (1), 139–165. Referendum Council. (2017). Uluru statement from the heart. https://www. referendumcouncil.org.au/sites/default/files/2017-05/Uluru_Statement_ From_The_Heart_0.PDF. Accessed 5 January 2020. Rousseau, J.-J. (1968). The social contract (G. Cole, Trans.). London: EP Dutton & Co. Rundle, T. (1997). Tasmanian parliamentary debates. http://www.austlii.edu. au.au/other/IndigLRes/19989/2/tas.html. Accessed 31 January 2002. South West Aboriginal Land and Sea Council. (2020). Settlement agreement. http://www.noongar.org.au/settlement-agreement. Accessed 10 June 2020. Strakosch, E. (2019). The technical is political: Settler colonialism and the Australian Indigenous policy system. Australian Journal of Political Science, 54(1), 114–130. Supreme Court of Canada. (1973). Calder v. British Columbia (AG) SCR 313, 4 WWR 1. Tait, M. J., & Ladner, K. L. (2018). Economic development through treaty reparations in New Zealand and Canada. Canadian Journal of Law and Society, 33(1), 61–83. Temin, D. M. (2018). Custer’s sins: Vine Deloria Jr. and the settler-colonial politics of civic inclusion. Political Theory, 46(3), 357–379. The Royal Proclamation—October 7, 1763. (2020). Yale Law School. https:// avalon.law.yale.edu/18th_century/proc1763.asp. Accessed 10 July 2020. United Nations. (2007). Universal declaration on the rights of Indigenous peoples. New York. Yorta Yorta Nation Aboriginal Corporation. (2019). Press release: Trick or treaty? https://yynac.com.au/press-release-trick-or-treaty/. Accessed 11 July 2020.

CHAPTER 5

The Treaty of Waitangi

5.1

Introduction

This chapter introduces the Treaty of Waitangi as an instrument of moral, political and jurisprudential significance. While the exact nature and scope of that influence is a matter of on-going contest, and from many M¯aori perspectives its full observance remains elusive, the Treaty still provides important insights into the nature of political authority. As a social contract, the Treaty helps to answer questions about where political authority lies and about how, by whom and for what purposes authority is exercised. It is an instrument of relational justice conferring on the British Crown the authority to establish government, but explicitly stating that M¯aori were not agreeing to relinquish authority over their own affairs, or agreeing to a relationship of colonial subjugation. The Treaty affirmed M¯aori rangatiratanga as a site of political authority in and over their own affairs. It introduced the concept of British subjecthood, which in 2020 has evolved into a more politically meaningful New Zealand citizenship, as a compliment to rangatiratanga. The chapter examines the distinctive spaces of political authority that these two conceptions of power might rationalise. Although, always in contest with state power, the Treaty allows a very clear M¯aori vision of a noncolonial politics. It was not the cession of sovereignty that the British

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 D. O’Sullivan, Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State, https://doi.org/10.1007/978-981-33-4172-2_5

107

108

D. O’SULLIVAN

Crown intended. That is not to say that the fact of New Zealand government is unjust, but it is to say that the fact of New Zealand government is constrained by rangatiratanga and by distinctive M¯aori citizenship guaranteeing M¯aori the same voice as anyone else in the administration of government. This chapter explains the Treaty’s contemporary influence, discusses the scope and limits of the Treaty principles established by courts and the Waitangi Tribunal, and introduces its meaning for policy-making and for the operations of public institutions. The book’s following chapters extend that discussion in specific policy context, and along with Canadian examples, as cites of comparison which Australia may find instructive.

5.2 The Treaty of Waitangi and the Nature of Political Authority There is deep uncertainty, within state policy systems and among the general public, over what the Treaty is and what it should be. As two government ministers observed 83 years apart, the Treaty ‘is on the lips of the humble and the great, of the ignorant and of the thoughtful’ (Apirana Ngata 1922 cited in Hill 2004, p. 129) and the ‘Treaty is both bigger and smaller than many people think’ (Trevor Mallard 2004, para. 22). In 2020, it remains as the New Zealand M¯aori Council observed in 1971, that ‘those who study the Treaty will find whatever they seek. Those who look for the difficulties and obstacles which surround the Treaty will find difficulties and obstacles. But those who approach it in a positive frame of mind and prepared to regard it as an obligation of honour will find that the Treaty is well capable of implementation’ (New Zealand M¯aori Council 1971, cited in Orange 2015, p. 209). The Treaty is also a statement about the nature of political authority. It is a statement about where authority lies and where its limits are found. It is a statement about who exercises authority, why and on whose behalf. These are questions of and for political theory as much as they are questions of and for practical politics. They show that Palmer (2008) is correct to propose that considering Indigenous claims ‘involves the question of whether western liberal political theory itself needs to be reshaped to accommodate Indigenous values, which it probably does’ (p. 300). In thinking about this proposition, it may be possible to begin with the presumption that the Treaty simply aspires to ‘healthy relationships’ which Palmer (2008) says is consistent with the its original intent and with the

5

THE TREATY OF WAITANGI

109

contemporary policy and legal language that the executive, parliament, judiciary and the Waitangi Tribunal use when speaking of the agreement (p. 303). The deeper liberal political theory that this book’s earlier chapters propose shows that the task of considering the Treaty’s contribution to a society grounded in just terms of association reveals a complexity that transcends ‘healthy relationships.’ For example, there are at least two overarching limits on the state’s capacity to function for M¯aori as well as it functions for others. Firstly, Treaty settlements have not restored sufficient of the M¯aori land that was alienated and the principle of noninterference by the Crown is not sufficiently well established to give M¯aori confidence in the state as an entity that functions justly. Secondly, M¯aori presence within the bureaucracy is not sufficiently influential to support M¯aori efforts in parliament and in the executive to establish more effective public policy. Both these limits are functions of the ways in which rangatiratanga, kawanatanga and citizenship interact. A liberal theory of indigeneity contributes a coherent intellectual framework for thinking about these relationships and for establishing what they mean for the distribution of political authority. The Treaty of Waitangi shows that the right to government conferred on the British Crown was not a M¯aori agreement to colonial hegemony. It shows explicitly that M¯aori were not surrendering the political capacity to make decisions for and about themselves. They were agreeing to the British Crown establishing government and authority over its own people, although, the nature of that government, and the intersection between M¯aori rights of citizenship and rangatiratanga—remains unsettled. Although there is considerable scholarship, complemented by judicial interpretations, of the meaning of the right to government and of the right to rangatiratanga (Orange 2015), the relationships between citizenship and rangatiratanga and how, if at all, each might influence the other is not so widely considered. Yet, one needs to know what it means to be a M¯ aori citizen and how the ensuing rights, capacities and responsibilities may differ from citizenship’s practice for other members of the New Zealand state. What, for example, does distinctive M¯aori citizenship mean when one elects members to parliament, participates in other forms of public decision-making or when one goes to school or to hospital? What does distinctive M¯aori citizenship mean for public policy development and implementation; what does it mean for who makes policy decisions

110

D. O’SULLIVAN

and by which processes? Is a New Zealand consideration of these questions instructive for Australia as it contemplates the form and purpose of treaties? The Treaty of Waitangi does not make policy prescriptions for the improvement of M¯aori health or educational outcomes. Nor does it prescribe self-determination’s meaning or tell governments how the rights to land, language and culture should be protected. However, it does suggest processes for more just and efficacious policy making. These are later discussed in detail to show that the Treaty endures as a morally important and politically and legally useful instrument. It is not trapped in time. It need not be constrained by the limiting judicial and political interpretations of the past. It is not, as the Supreme Court found in 1877 a legal nullity (Supreme Court of New Zealand 1877). Nor is it the political nullity that the Crown assumed, at least until 1971, when the Treaty began to appear regularly in Cabinet minutes, and when Cabinet asked the Minister of M¯aori Affairs to ascertain from the New Zealand M¯aori Council which legislative provisions it believed were in breach of the Treaty (Palmer 2008). The Council responded with examples including the provisions of the M¯ aori Affairs Act 1953 which allowed a minority of owners to alienate M¯aori land. The Council argued that land alienation was, in fact, the Act’s specific intent. The Act allowed for the seizure of M¯aori land for unpaid local government rates, which the Council maintained was also a breach of the Treaty. Further Treaty breaches that the Council alleged, included the M¯ aori Trustee Act 1953 which limited the distribution of dividends to M¯aori land holders and the Public Works Act 1928 which provided for the compulsory acquisition of M¯aori land for public works, while the Petroleum Act 1937 declared minerals and gasses the property of the Crown (New Zealand M¯aori Council 1971, cited in Palmer 2008). Interestingly, these examples related only to the Article 2 rights to land and other natural resources. No reference was made to policy failure in health or education, especially the considered use of schooling to undermine the M¯aori language or restrict M¯aori educational attainment (O’Sullivan 2007). Nor was the effective exclusion of M¯aori people and values from government raised as a possible breach of the Treaty. Significant because, as a principal contributor to all other breaches, exclusion is the most far-reaching in its effect and its opposite, substantive and meaningful inclusion, at every level of public decision-making, is an urgent imperative.

5

THE TREATY OF WAITANGI

111

Subsequent to the New Zealand M¯aori Council’s advice and to a change of government in 1972, Cabinet agreed to ‘examine the practical means of legally acknowledging the principles set out in the Treaty of Waitangi’ (cited in Palmer 2008, p. 81). This decision raised a series of legally difficult and politically contentious questions. The answers to which remain unsettled, especially in relation to what if anything, might constitute the Treaty’s principles, and whether these would honour or diminish the substance of its articles.

5.3

Treaty Principles

Courts and the Waitangi Tribunal have developed these principles as interpretative guides, partly to deal with differences between the M¯aori and English texts of the agreement. The English text, which is not the agreement signed by most of the chiefs at Waitangi in 1840, conceded much more to the British Crown and offered fewer protections to M¯aori than did the M¯aori text. However, there is an argument that resolving the conflict between the two through principles diminishes the M¯aori text. Importantly, and as the Waitangi Tribunal (2014) found, this text was not a cession of sovereignty to the British Crown—a cession that may arguably be read into the English version. The principles are not the Treaty, as the Court of Appeal (1992) has found, but they do reflect the importance that governments and courts attach to it as a public policy instrument. They also recognise that neither text is a translation of the other and suggests that the principles do not automatically grant precedence to the English text. In 1992 Justice McKay found that: It is the principles of the Treaty which are to be applied, not the literal words. The English and M¯aori texts in the first schedule to the Treaty of Waitangi Act 1975 are not translations the one of the other, and the differences between the texts and shades of meaning are less important than the spirit. (New Zealand Court of Appeal 1992)

The principle of partnership imposes an obligation on the Crown and M¯aori to act reasonably, honourably and in good faith, an obligation which the President of the Court of Appeal described as ‘infinitely more than a formality’ (Te Puni Kokiri 2001, p. 79). However, courts have not interpreted it as an equal partnership and leave considerable scope for the

112

D. O’SULLIVAN

Crown to govern as it thinks fit, though still constrained by the Court of Appeal’s (1987) finding that acting reasonably, honourably and in good faith imposes a duty on the Crown to be informed in its decision making. Consultation is presumed as the process through which the Crown will routinely inform itself. However, the right to be consulted is not a political right of the same standing, nor holding the same potential for influence as participation, which is a liberal democratic right of significant potential. Participation is ordinarily an elementary right of citizenship. The potential and democratic importance of the right to substantive and meaningful participation, and its potential to secure better policy outcomes for M¯aori, is among this book’s recurring themes. It may render consultation irrelevant and exposes partnership’s political weakness in relation to the rights, capacities and powers of self-determination. Partnership is a political process. It does not embody tangible rights, and the partnership discourse may have weakened M¯aori expectations of their share in Crown sovereignty, that the Treaty in fact affirms, and that liberal democracy presumes. On the other hand, the principle of reciprocity is deeply problematic from a perspective of M¯aori self-determination. It constrains the possibilities of the partnership principle and makes, as its founding presumption, the argument that pursuant to the Treaty, hapu surrendered their sovereignty for the protection of rangatiratanga. Although this view was set aside by the Tribunal in its 2014 finding that the Treaty was not, in fact, a cession of sovereignty to the British Crown (Waitangi Tribunal 2014), in 1988 its opinion was that: It was a basic object of the Treaty that two people would live in one country. That in our view is also a principle fundamental to our perception of the Treaty’s terms. The Treaty extinguished M¯aori sovereignty and established that of the Crown. In so doing it submitted a charter, or a covenant in M¯aori eyes, based upon their pledges to one another. It is this that lays the foundation for the concept of a partnership. (Waitangi Tribunal 1988, p. 192)

This was not a reciprocity of comparable benefit. Nor one that could be made consistent with a politics of recognition. Although the principle imposes an obligation on the Crown to protect rangatiratanga, the presumption seems to be that the obligation is owed as a benevolent duty not as the acceptance of an inherent right.

5

THE TREATY OF WAITANGI

113

However, the principle of reciprocity is the subject of evolving interpretation and by 1997 the Tribunal interpreted M¯aori understandings of the Treaty in 1840 as assuming that: ‘M¯aori and the Governor would be equal, not one above the other. A persistent metaphor [during the northern Treaty debates] was that the Governor should not be up and M¯aori down’ (Waitangi Tribunal 1997, p. 114). The following year (1998), the Tribunal found that the principle of reciprocity meant that neither party was subordinate to the other (Waitangi Tribunal 1998); a presumption that gives rise to the principle of mutual benefit. The principle of mutual benefit may be interpreted to qualify, contextualise and restrain Crown sovereignty as an absolute authority over and above M¯aori. Public policy must be made with regard to M¯aori interests and M¯aori should not, for example, be excluded from the benefits of newly discovered resources. In its report on a M¯aori challenge to the Crown’s claim to exclusive ownership of the radio spectrum, and thus the right to sell it, the Waitangi Tribunal (1999) found that: the ceding of kawanatanga to the Queen did not involve the acceptance of an unfettered legislative supremacy over resources. Neither Treaty partner can have monopoly rights in terms of the resource. M¯aori interests in natural resources are protected by the distinctive element of tino rangatiratanga … Tribal rangatiratanga gives Mäori greater rights of access to the newly discovered spectrum. In any scheme of spectrum management it has rights greater than the general public, and especially when it is being used for the protection of taonga of the language and culture. (p. 7)

Mutual benefit also gives rise to a duty of compromise (Waitangi Tribunal 1992). The Crown’s power is not unilateral, and it must exercise its powers with reference to a principle of active protection. For example, the Court of Appeal (1987) has found that ‘the duty of the Crown is not merely passive but extends to active protection of M¯aori people in the use of their lands and waters to the fullest extent practicable’ (641, 664), and in a case which had significant implications for the use of public broadcasting and education to support M¯aori language revitalisation, the Court (1992) found that: It was not disputed either that the prime objective of the Treaty was to ensure a proper place in the land for the two peoples on whose behalf it was signed. Nothing could be further from that objective than the obliteration of the culture of one of them or its absorption into that of the other. Thus

114

D. O’SULLIVAN

protection of the M¯aori language, an essential element of M¯aori culture, was and is a fundamental Treaty commitment on the part of the Crown. (567, 587)

The failure to protect gives rise to a principle of redress (Te Puni Kokiri 2001), which is the basis of most claims to the Tribunal. The underlying and consistent judicial presumption is that these principles should always apply to both the substance and processes of public policy. However, these are not static presumptions, and it is surely a breach of good faith for these principles to be defined and developed by the Crown alone. Unilateral definition positions the Crown as senior partner with an overriding sovereignty in which M¯aori do not share and to which rangatiratanga is subservient. The Treaty principles are reductionist, but on the other hand contribute to the agreement’s evolving legal, political and policy significance. Waitangi Tribunal reports provide the most considered and detailed account of what the Treaty and Treaty principles mean in practice (see the Waitangi Tribunal at https://waitan gitribunal.govt.nz/).

5.4

The Treaty and Policy-Making

In 2019, a Cabinet Office Circular, set out strengthened Executive expectations of the influence that the Treaty should have over public policy development. The Circular sets out questions that policy makers must consider in providing advice to the Executive on all policy proposals. However, as the book will presently show, the Treaty’s influence at the executive and parliamentary levels of government are not paralleled at the bureaucratic points of policy development and implementation. It is at these points, that M¯aori participation is least influential. There is consequently important scope for further research into why M¯aori influence is weaker at some points of the policy process than others. These discrepancies do, however, show that sovereignty is not an abstract concept, but a measurable reflection of people’s ability to influence public decisions. For M¯aori, it is also a measurable reflection of rangatiratanga’s strength. The 2019 Cabinet Office Circular requires bureaucratic policy makers to consider the Treaty in explicit ways as they develop advice to ministers. In respect of Article 1, the article which establishes the Crown’s right of government, policy makers are to ask:

5

THE TREATY OF WAITANGI

115

1. How does the proposal/policy affect all New Zealanders? What is the effect on M¯aori (if different, how and why?) 1.1. Will the proposal affect different M¯aori groups differently? 1.2. What could the unintended impacts on M¯aori be and how does the proposal mitigate them? 2. How does the proposal demonstrate good government within the context of the Treaty? 2.1. Have policy-makers followed existing general policy guidance? 2.2. Are there any legal and/or Treaty settlement obligations for the Crown? 3. What are the Treaty/M¯aori interests in this issue? 3.1. How have policy-makers ascertained them? 4. How does the proposal demonstrate that policy-makers are meeting the good faith obligations of the Crown? 5. To what extent have policy-makers anticipated Treaty arguments that might be made? 5.1. And how does the proposal respond to these arguments (New Zealand Government 2019, p. 4)? In respect of Article 2, which is the affirmation of rangatiratanga, policy makers are to ask: 1. Does the proposal allow for the M¯aori exercise of rangatiratanga while recognising the right of the Crown to govern? 1.1. Can/should the proposal, or parts of it, be led by M¯aori? 1.2. What options/mechanisms are available to enable rangatiratanga? 2. Have M¯aori had a role in design/implementation? 2.1. If so, who? 2.2. If not, should they? 3. Does the proposal: 3.1. enhance M¯aori wellbeing?

116

D. O’SULLIVAN

3.2. build M¯aori capability or capacity? 4. Is there any aspect of this issue that M¯aori consider to be a taonga? 4.1. How have policy-makers come to their view of whether the issue is a taonga, and is there consensus? 4.2. What effect does that have on the proposal (New Zealand Government 2019, p. 8)? In respect of Article 3, which is concerned with M¯aori rights and privileges of citizenship, policy makers are to ask: 1. Does the proposal aim to achieve equitable outcomes? 2. How does the proposal differ from previous efforts to address the issue? 3. How does the proposal demonstrate that policy-makers have looked at the proposal from the perspective of legal values such as natural justice, due process, fairness and equity? 4. How does the proposal demonstrate that policy-makers have looked at the issue from the perspective of tikanga values (New Zealand Government 2019, p. 11)? These questions show the evolving and often subjective nature of Treaty politics. They also show that policy development is a site of significant influence and thus the importance of substantive M¯aori presence in the policy process. Presence in the policy process is especially important because as Tawhai and Gray-Sharp’s (2011) edited collection Always Speaking: the Treaty of Waitangi and Public Policy shows, the Treaty’s contemporary policy significance is widespread across health, education, broadcasting, foreign policy, resource management and criminal justice, among other policy domains. While the Treaty ‘always speaks’ it does so in evolving fashion as, for example, prevailing thought on the nature of government and citizenship changes. It is for this reason that the former legal academic and presently judge of the High Court of New Zealand, Matthew Palmer, may be correct to argue that ‘the meaning, status and force of the Treaty of Waitangi, and the question of who exercises public power in relation to it, is the most significant set of constitutional issues currently facing New Zealand’ (p. 18). While governments still breach the Treaty when they

5

THE TREATY OF WAITANGI

117

find it politically useful (Palmer 2008), it is equally significant that ‘M¯aori are not going anywhere’ (Palmer 2008, p. 23). However, Palmer’s (2008) further argument that the Treaty is too politicised and that its place in the constitution requires certainty may not necessarily follow from these observations.

5.5

Constitutional Certainty, Political Certainty

Constitutional certainty itself may be reasonable, but like political certainty, it may also be constraining. This is because the Treaty’s concern with rights and the relationships between different spheres of political authority is a concern for the evolving and unpredictable. One cannot predict the political circumstances in which these rights and relationships become important. Nor can one foreshadow points of conflict with any certainty. Ownership of the radio spectrum was not, for example, a matter of concern to M¯aori until the Crown presumed ownership and the right to sell it with potentially detrimental effects on the development of M¯aori broadcasting and thus opportunities for linguistic revitalisation (Waitangi Tribunal 1990). People’s expectations of what constitutes fairness may also change with time and context. Subjecthood’s development into citizenship is an example. A definite and ideally permanent statement of what the Treaty means may only serve to constrain people’s thinking in future and unpredictable contexts. McNeil’s (2004) remarks on the limits to more expansive judicial thinking on the right to self-determination shows that politics, with all its uncertainty, is at least as significant as constitutionalism as a path to securing Treaty rights. regardless of the strength of these influence in favour of Indigenous peoples, there are limits to how far the courts in Australia and Canada are willing to go to correct the injustices caused by colonialism and dispossession. Despite what judges may say about maintaining legal principle, at the end of the day what really seems to determine the outcome in these kinds of cases is the extent to which, Indigenous rights can be reconciled with the history of British settlement without disturbing the current political and economic power structure. I think this is a reality that Indigenous peoples need to take into account when deciding whether courts are the best places to obtain redress for historical wrongs and recognition of present-day rights. It may be advantageous to formulate strategic

118

D. O’SULLIVAN

approaches that avoid surrendering too much power to the judicial branch of the Australian and Canadian state. (McNeil 2004, pp. 300–301)

The Supreme Court of Canada’s (2004, paras. 16–19) statement that justice is fairly pursued by reconciling Indigenous prior occupancy with the sovereignty of the Crown, illustrates McNeil’s point. There is, alternatively, an Indigenous political authority that does not necessarily seek reconciliation with that of the Crown. It is an authority that belongs inherently to Indigenous peoples, and is not a claim to the Crown’s benevolent recognition. From this perspective, the Treaty’s potential is, instead, to provide moral values and frameworks for resolving conflict and for establishing enduring and just terms of association. The certainty that it provides in relation to the Crown’s right to government, M¯aori rights to rangatiratanga and the rights and privileges of New Zealand citizenship are important, but what these mean in practical terms needs to be worked out in specific and evolving contexts. Uncertainty surrounding the Treaty is not necessarily unsustainable as Palmer (2008) argues. Nor is it obviously avoidable. The risk of unexpected interpretations is high. However, there is also considerable political importance in Palmer’s (2008) observation that ‘New Zealanders are relatively good at resolving crises as they arise and dislike being asked to think about issues which cause conflict when they don’t have to’ (p. 323). Therefore, as the President of the Court of Appeal remarked in 1987, the Treaty ‘has to be seen as an embryo rather than a fully developed and integrated set of ideas’ (New Zealand Court of Appeal 1987, 34– 35). This reasoning may partly explain why, in 2005, the Constitutional Arrangements Committee of the House of Representatives declined to take a position on parliament’s place in relation to the Treaty of Waitangi (Palmer 2008). The Treaty is an agreement between the Crown and hapu, but the separation of powers among the executive, parliamentary and judicial branches of government, means that the Crown does not reside in one place. Its powers are not held by a single body and Parliament may delegate powers to local governments, District Health Boards and the bureaucracy for example. This, too, limits the Treaty’s capacity as an instrument of ongoing certainty. It may then be aspirationally just if it is ‘Always Speaking’, though politically not so easy, to argue that ‘the time has come to stabilise the position of the Treaty of Waitangi in New Zealand’s law and constitution’ (Palmer 2008, p. 18). For Palmer (2008)

5

THE TREATY OF WAITANGI

119

one can ‘stabilise the position of the Treaty by making clear that the Treaty of Waitangi is a binding part of New Zealand’s law like other law. To interpret and apply it, I would create a new Treaty of Waitangi Court, with appeal alone to the Court of Appeal and Supreme Court’ (p. 18). While it may be a matter of the ‘honour of the Crown’ to establish the Treaty as binding in law, and there may be arguments for such a Court, complex and contested political questions would still follow its judicial interpretations. There are deep tensions between justice and politics, and as Palmer (2008) himself observed: ‘The daily operation of the constitution is rooted in the hard-edged reality of power politics’ (p. 18). The Court’s effectiveness, like the moral legitimacy that M¯aori may or may not extend to other courts and public institutions, depends on general public acceptance of the proposition, and particular M¯aori acceptance, that the Crown is M¯aori as much as it is the repository of anyone else’s collective authority. Extending moral legitimacy to a Crown court requires that M¯aori have reason to accept that the Crown is not an adversary, nor even a treaty partner, but inclusive and respectful of themselves. In this context Palmer’s (2008) further argument is important. The ‘perceived legitimacy’ of the judicial branch of government would be strengthened by increasing the number of M¯aori appointed, on merit, to the Court of Appeal and Supreme Court. This argument applies equally to the lower courts and one response to the crisis in the state’s disruptive role in the care and protection of M¯aori children, which would help to maintain the citizenship rights of M¯aori children while upholding the rangatiratanga of their whanau and iwi, would be to ensure that wherever possible M¯aori judges hear applications in the Family Court relating to the removal of M¯aori children from their homes. In 2019, the appointment of New Zealand’s first M¯aori Chief District Court Judge was a further, and significant, illustration of participation over partnership. Palmer (2008) also argues that a generic statement of the Treaty’s purpose ought to be formulated. This, he says, could usefully be accompanied by a more specific elaboration of the Treaty’s terms than the original texts contain. The problem with this approach is that the statement’s terms would be necessarily developed in the abstract. Whereas, the current practice of the Tribunal effectively leading the executive’s thinking, and allowing the views of M¯aori claimants to hold influence, means that the Treaty may develop as an instrument that responds to immediate concerns as M¯aori have identified them.

120

D. O’SULLIVAN

Codifying the Treaty’s terms through an abstract deliberative process would be highly contentious and, from a government’s perspective, politically risky. From a M¯aori perspective, the risk of reductionist interpretations influencing the statement means that such an exercise is unlikely to serve a useful political purpose. The opportunities that people presently enjoy, through the ability to put claims before the Tribunal, is an opportunity to say ‘this is what we think the Treaty demands in this context’. The Tribunal often agrees and significant political developments may follow. The process is an imperfect one, but the Treaty’s unstable and uncertain influence, does not necessarily contribute to that imperfection. It may simply reflect that political priorities, possibilities and circumstances change and are responsive to context. It is, on the other hand, true that a statement of meaning agreed upon by M¯aori, the Crown and a representative cross-section of the wider citizenry would have significant moral and legal authority and make the Treaty’s application to public decisionmaking less contentious. But the absence of contention does not, on its own, make justice more probable. It is also important that tensions over Treaty policy are not caused by the agreement itself (Palmer 2008). They are caused by the actions and inactions of the state, public agreement or disagreement with the propriety of those actions and inactions, and the perceived unreasonableness of some M¯aori claims. If, for example, one does not accept that land alienation was unjust, or that the state’s carefully thought out policy of undermining the M¯aori language was unjust, then one will not accept the Treaty’s increasing policy influence. The political debate is, then, primarily one concerning the nature of justice. Specifically, M¯aori claims to distinct identities vis-à-vis the assimilationist claim to cultural homogeneity. These tensions reflect that, for some, the Treaty is indispensably important, but that for others it brings unjustifiable illiberal demands into the public realm, because its foundation in group rights undermines the individual as the only legitimate shareholder in public sovereignty. If these tensions are left to politics alone to resolve, Indigenous claims must depend on moral persuasiveness, and the reasonableness of others, vis-a-vis the prejudice and self-interest of others. This is the tension that explains why no treaties have been concluded in Australia, even though Indigenous requests for such agreements have been long and forcefully made. The tension remains because, in conflict with colonial intent, Indigenous peoples reject assimilation into settler cultures. There is,

5

THE TREATY OF WAITANGI

121

instead, an ongoing Indigenous political presence arguing for the development of just terms of association in public life. So, while it may be that ‘Cabinet and Parliament should do the hard work of considering exactly how the Treaty should be reflected in legislative provisions’ (Palmer 2008, p. 101), the contribution that this work makes to enhancing substantive M¯aori citizenship and affirming rangatiratanga depends ultimately on the strength of M¯aori influence on the legislative process—influence over the business of kawanatanga—as members of the Cabinet and Parliament, as much as it depends on their assertion of political authority as hapu. Unless M¯aori are present, the presumption of an ethnically constructed Pakeha Crown, is affirmed as the senior partner in a Treaty relationship. When M¯aori are present, the Crown takes on a different form and kawanatanga is affirmed as a matter of legitimate M¯aori interest. This is especially important given the legislature’s role in interpreting and setting out the Treaty’s meaning.

5.6

Whose Is the Right to Govern?

The Waitangi Tribunal provides M¯aori with a distinctive institutional space in which to set out views on what just terms of association look like. In the Tribunal, unlike the political arena, these claims can only be challenged and contested through a process of public reason. Indeed, Palmer’s (2008) analysis of legislative references to the Treaty shows that parliament is led by the Tribunal (as its establishing legislation intended) and courts in elaborating what the instrument means. This is important because the Tribunal has a significant M¯aori membership, its hearings are routinely chaired by a M¯aori judge, and it is responsive to claims that only M¯aori can lodge. Its reports reflect the breadth of the Treaty’s relevance as M¯aori collectively see it. The Tribunal’s hearings and reports reflect careful deliberation. They allow historical grievances to be placed securely into the public memory, while also providing opportunities for the mitigation of contemporary grievances. The Tribunal’s jurisdiction over contemporary claims, acquired through an amendment to the Treaty of Waitangi Act 1975 and which took effect in 1985, means that injustices cannot be dismissed as belonging to the past, as somebody else’s responsibility and matters that are rightly forgotten about, akin to John Howard’s rationale for dismissing the Human Rights and Equal Opportunities Commission’s

122

D. O’SULLIVAN

(1997) recommendation that parliaments say ‘sorry’ for the removal of Indigenous Australian children from their families: I don’t think a formal statement of that kind is appropriate because I don’t believe that current generations of Australians should be seen as responsible for deeds over which they had no control and in which they had no involvement. (Sydney Morning Herald, 27 January 2000, p. 1)

Sorrow need not imply personal guilt. But it does carry a commitment to correct, as far as possible, the consequences of the transgression of justice that is in question. It is this, that makes the decisions of an earlier Parliament the responsibility of the present one. Sorrow may be expressed for the actions of a Parliament, as an institution, as much as it may be expressed for the actions of an individual. It is also significant that if sorrow implies a commitment to desist from a transgression of justice, it will be a Parliament that gives authority to that commitment and legislates for its implementation. Saying sorry for the deeds of an earlier generation is, in this example, very much the business of contemporary parliaments and policy-makers. The Waitangi Tribunal’s contemporary jurisdiction means that there is a constant public policy reminder that breaches of the Treaty are not aberrations of the past. They are not isolated acts of aggression. They are integral to the colonial political system whose existence depends on the subjugation of other people and on the alienation of their resources. Colonialism is a political system that remains unless its participants consciously decide to change it. This is why Tribunal reports also show that there remain considerable constraints on the M¯aori exercise of rangatiratanga and that the capacities of citizenship are not equally enjoyed by M¯aori. Yet, the deliberative process, has at least worked well enough to secure the Treaty’s place on the public agenda, even though: ‘The political approach of Parliament suggests that Parliament’s elaborations of the meaning of the Treaty can be expected to be relatively disconnected’ (Palmer 2008, p. 90). Such disconnection is, for example, apparent in inconsistent legislative references to the Treaty. Te Ture Whenua M¯ aori Act 1993 (New Zealand Government 1993) is Parliament’s most comprehensive statement of the Treaty’s meaning. The Act affirms the view that kawanatanga was exchanged for the protection of rangatiratanga. Yet, it affirms the desirability of the M¯aori retention of M¯aori land, while the M¯ aori Language Act 1987 defines language as one

5

THE TREATY OF WAITANGI

123

of the taonga that the Treaty protects (New Zealand Government 1987). The Preamble to the M¯ aori Fisheries Act 2004 affirmed the Treaty’s protection of ongoing M¯aori possession of their fisheries (New Zealand Government 2004). The Crown has not, in contrast, given full effect to the New Zealand Public Health and Disability Act 2000s requirement to provide ‘for mechanisms to enable M¯aori to contribute to decisionmaking on, and to participate in the delivery of, health and disability services’ (New Zealand Government 2004, section 4). This failure is among the points presently under the Waitangi Tribunal’s consideration and is extensively discussed in Chapter 7. Palmer (2008) argues that to bring coherence to the Treaty’s interpretation, one should think about the agreement not in a theoretical or abstract fashion, but from a perspective of constitutional realism. The proposition is that: ‘a constitution expresses and determines who exercises public power and how they exercise it; and analysing a constitution involves probing under its seductively formal legal clothes to the hard reality of the naked exercise of public power’ (p. 20). This is why calls for constitutional transformation, such as those made by a Working Group of the Iwi Chairs’ Forum (Independent Working Group on Constitutional Transformation 2016), need to be thought about in terms of practical politics, and also in terms of the social, cultural and economic circumstances of people’s lives. Constitutions need to allow people to live the lives that they want to lead and to pursue the relationships with others that they want to pursue. If, for example, the Treaty receives ‘constitutional manifestation’ in the guaranteed M¯aori seats in parliament and in the proportional nature of the electoral system (Palmer 2008, p. 20), and if M¯aori want to serve in parliament, the executive and judiciary, and take their place as M¯aori in the public life of the state, it is necessary to think beyond the Working Group’s description of participation in matters of kawanatanga as solely the domain of an ethnically constructed Crown’s people (Independent Working Group on Constitutional Transformation 2016). From the Working Group’s perspective of parliament belonging to the Crown as an ethnically exclusive P¯akeh¯a authority, M¯aori authority lies only in exclusively M¯aori institutions, as expressions of rangatiratanga. While this exclusivity is not reflected in M¯aori choosing not to stand for election to parliament, or accept judicial appointments or positions of potential influence in the bureaucracy, it is noted to draw attention to the far-reaching practical implication of denying an Indigenous presence

124

D. O’SULLIVAN

in public institutions. On the other hand, the Working Group’s account of the values that ought to underlie political relationships is an instructive basis from which to consider just terms of association. Its report did, for example, identify ‘a very real desire for a more open constitutionalism and what we describe as a conciliatory and consensual democracy rather than an adversarial one’ (Independent Working Group on Constitutional Transformation 2016, p. 9). In this respect, the report highlighted the values that people think should inform the workings of the political system, and which would, in fact, be possible under differentiated liberal citizenship. 1. The value of tikanga [cultural values]—that is the need for a constitution to relate to or incorporate the core ideals and the ‘ought to be’ of living in Aotearoa. 2. The value of community—that is the need for a constitution to facilitate the fair representation and good relationships between all peoples. 3. The value of belonging—that is the need for a constitution to foster a sense of belonging for everyone in the community. 4. The value of place—that is the need for a constitution to promote relationships with, and ensure the protection of Papat¯u¯anuku [the Earth]. 5. The value of balance—that is the need for a constitution to ensure respect for the authority of rangatiratanga [chiefly authority] and k¯awanatanga [governorship] within the different and relational spheres of influence. 6. The value of conciliation—that is the need for a constitution to have an underlying jurisdictional base and a means of resolution to guarantee a conciliatory and consensual democracy. 7. The value of structure—that is the need for a constitution to have structural conventions that promote basic democratic ideals of fair representation, openness and transparency (Independent Working Group on Constitutional Transformation 2016, p. 69). The report also stressed the importance of relational justice: Contest and debate were regarded [at the consultation meetings that informed the report] as essential to good decision-making but there was concern that unless it was placed upon some tikanga about how conflict

5

THE TREATY OF WAITANGI

125

or difference could be managed then any rangatiratanga and kawanatanga spheres of influence would have difficulty working together. (Independent Working Group on Constitutional Transformation 2016, p. 71)

The report’s following principles may also underly a liberal political order to give effect to the Treaty. • Recognising and acknowledging the kawa and tikanga [culture and cultural practices] of each marae, hap¯ u and iwi [meeting house, subtribe and tribe]; • Restoring, reclaiming and re-practicing our tikanga and kawa; • Learning, teaching and transmission of Te Reo M¯aori [the M¯aori language]; • Retelling our own histories in our own ways; • Learning and understanding how our tipuna [ancestors] lived before us; • Understanding the roles of men and women, tuakana and teina [older and younger relatives of the same generation], and their importance in our societies; • Ensuring that Te Ao M¯aori becomes a living reality for us as tangata whenua [people of the land] (Independent Working Group on Constitutional Transformation 2016, p. 119). The philosophical depth of these propositions and the impact they may have on how politics works, shows why one might contest the simplicity of the Tribunal’s finding that: ‘The Treaty represents the gift of the right to make laws in return for the promise to do so as to acknowledge and protect the interests of the Indigenous inhabitants’ (Waitangi Tribunal 1983, p. 55). Simplicity, in this case limits political possibility and is a reason to object to Palmer’s (2008) argument that it is better to see the Treaty as concerned with healthy relationships rather than thinking in the more abstract terms of rangatiratanga, sovereignty or self-determination. Relationships are important. But the colonial relationship is complex and always changing. Restraining its exploitative logic requires well developed conceptions of rights to make sense of what healthy relationships might actually look like. If, for example, healthy relationships depend on M¯aori being able to exercise political authority consistent with the Treaty one does, in fact, need to understand what is meant when people speak of sovereignty, self-determination and rangatiratanga.

126

D. O’SULLIVAN

5.7

Conclusion

The Treaty of Waitangi is a social contract influencing the ways in which power is distributed and the ways in which New Zealand public policy is made. While its prevailing interpretations by the Crown do not protect rangatiratanga or uphold a M¯aori share in public sovereignty to the extent that M¯aori widely argue is just, the agreement does provide a morally defensible framework for more fully asserting both rangatiratanga and citizenship. M¯aori commitment to these objectives has been consistent since the Treaty’s signing in 1840. Courts and the Waitangi Tribunal have, over time, developed principles to assist with the Treaty’s interpretation and to explain the obligations that it imposes on the Crown. For some, these principles bring clarity to an otherwise uncertain policy sphere, while for others, they diminish the substance of the rights set out in the M¯aori text of the instrument, which was quoted in full in its English translation, in the book’s introduction. While Palmer (2008) argues that further codification may contribute to a less contested policy environment, it is not clear that this is possible or necessary. While its overarching commitments are enduring, the Treaty must be responsive to changes in the political environment, changes in people’s expectations of the political system and what it can achieve and to the advent of new knowledge and new technologies. The following chapters show how the Treaty and its principles are practised and how they might be developed to ensure that its promise of non-colonial political relationships may be upheld. These points are discussed alongside examples of the expression of Indigenous authority over their own affairs in Australia and Canada. The following chapters also consider examples of Indigenous participation in the public life of the state in these jurisdictions to show how the distribution of political authority both inside and outside the state shapes opportunities for self-determination. They show, also, how treaties may affirm these opportunities, and how participation in public life is an outcome of recognition and test of the value of any measures of Indigenous recognition that the state might admit.

References Hill, R. (2004). State authority, indigenous autonomy: Crown-M¯ aori relations in New Zealand/Aotearoa 1900–1950. Wellington, New Zealand: Victoria University Press.

5

THE TREATY OF WAITANGI

127

Human Rights and Equal Opportunities Commission. (1997). Bringing them home report of the national inquiry into the separation of Aboriginal and Torres Strait Islander children from their families. http://www.austlii. edu.au/au/special/rsjproject/rsjlibrary/hreoc/stolen/prelim.html#terms29. Accessed January 2003. Independent Working Group on Constitutional Transformation. (2016). Matike mai o Aotearoa. www.converge.org.nz/pma/iwi.htm. Accessed 1 July 2017. Mallard, T. (2004). We are all New Zealanders now. www.beehive.govt.nz/Vie wDocument.cfm?DocumentID=20451 (site discontinued). McNeil, K. (2004). The vulnerability of indigenous land rights in Australia and Canada. Osgoode Hall Law Journal, 42, 271. New Zealand Court of Appeal. (1987). New Zealand M¯aori Council v AttorneyGeneral [1987] 1 NZLR 64. New Zealand Court of Appeal. (1992). New Zealand M¯aori Council v AttorneyGeneral—[1992] 2 NZLR 576. New Zealand Government. (1993). Te Ture Whenua M¯ aori Act 1993. http:// www.legislation.govt.nz/act/public/1993/0004/latest/DLM289882.html. Accessed 12 June 2020. New Zealand Government. (2004). M¯ aori Fisheries Act 2004. http://www.leg islation.govt.nz/act/public/2004/0078/latest/DLM311464.html. Accessed 12 July 2020. New Zealand Government. (2019). Cabinet office circular—Te Tiriti o Waitangi/Treaty of Waitangi guidance. https://dpmc.govt.nz/publications/co19-5-te-tiriti-o-waitangi-treaty-waitangi-guidance. Accessed 11 July 2020. New Zealand Government M¯aori Language Act. (1987). http://rangi.knowle dge-basket.co.nz/gpacts/public/text/1987/an/176.html. Accessed 3 May 2003. Orange, C. (2015). The story of a treaty. Wellington: Bridget Williams Books. O’Sullivan, D. (2007). Beyond biculturalism. Wellington: Huia Publishers. Palmer, M. (2008). The Treaty of Waitangi in New Zealand’s law and constitution. Wellington: Victoria University Press. Supreme Court of Canada. (2004). Haida Nation v. British Columbia (Minister of forests). SCR 511. Supreme Court of New Zealand. (1877). Wi Parata v. Bishop of Wellington. 3 NZ Jur (NS) 72 (SC). Sydney Morning Herald, 27 January 2000. Tawhai, V., & Gray-Sharp, K. (2011). Always speaking: The Treaty of Waitangi and public policy: Wellington: Huia Publishers. Te Puni Kokiri. (2001). The principles of the Treaty of Waitangi as expressed by the courts and the Waitangi Tribunal. https://waitangitribunal.govt.nz/ assets/Documents/Publications/WT-Principles-of-the-Treaty-of-Waitangias-expressed-by-the-Courts-and-the-Waitangi-Tribunal.pdf. Accessed 11 July 2020.

128

D. O’SULLIVAN

Waitangi Tribunal. (1983). Report of the Waitangi Tribunal on the Motunui Waitara claim. https://forms.justice.govt.nz/search/Documents/WT/wt_ DOC_68496669/Motunui-Waitara%20Report%201983.pdf. Accessed 12 July 2020. Waitangi Tribunal. (1988). Report of the Waitangi Tribunal on the Muriwhenua fishing claim. Wellington: GP Publications. Waitangi Tribunal. (1990). Report of the Waitangi Tribunal on claims concerning the allocation of radio frequencies. Wellington: GP Publications. Waitangi Tribunal. (1992). The Ngai Tahu sea fisheries case. https://forms.jus tice.govt.nz/search/Documents/WT/wt_DOC_68472628/NT%20Sea%20F isheries%20W.pdf. Accessed 11 July 2020. Waitangi Tribunal. (1997). Muriwhenua land report. Wellington: GP Publications. Waitangi Tribunal. (1998). Te whanau o Waipareiera report. Wellington: GP Publications. Waitangi Tribunal. (1999). Radio spectrum management and development interim report. Wellington: GP Publications. Waitangi Tribunal. (2014). Te Paparahi o Te Raki stage 1. https://forms.justice. govt.nz/search/Documents/WT/wt_DOC_85648980/Te%20RakiW_1.pdf. Accessed 12 July 2020.

CHAPTER 6

Recognition, Pluralism and Participation

6.1

Introduction

This chapter develops the idea that recognition, through treaties or other means, requires plural values and plural modes of participation in public life. In particular, opportunities for Indigenous people to pursue their own conceptions of what constitutes a meaningful life, and to pursue it in their own ways without state interference. Recognition presumes that Indigenous ways of being human and being able to express their broad political aspirations are not morally inferior to those of other citizens. They need to be capable of expression in public institutions as much as they are capable of expression inside the Indigenous nation. The chapter shows that plurality is preliminary to inclusion, but that plurality does not challenge the liberal presumptions on which the contemporary Australian state is built. Instead, recognising cultural difference and recognising colonialism’s impact are essential to upholding the Indigenous person’s liberty. Public institutions and public policies are not culturally neutral. They are influenced by the values and aspirations of those who create them. The chapter shows that Australian public policy making is not generally receptive to Indigenous people or Indigenous values being present in public institutions and influencing the policy process. However, important challenges and modifications to the traditional practice of exclusion © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 D. O’Sullivan, Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State, https://doi.org/10.1007/978-981-33-4172-2_6

129

130

D. O’SULLIVAN

are emerging, and treaties and a Voice to parliament, could institutionalise more culturally inclusive and self-determining modes of policy-making. Yet, it is also true that the state’s recent concessions to Indigenous participation do not extend to Indigenous leadership. The consultation that is described in this chapter is at the lower end of the possibilities that plural participation imagines and that self-determination demands. Chapters 7 and 8 provide examples from Canada and New Zealand of how Indigenous peoples are challenging the colonial presumption that partnership is the limit to the state’s capacity to concede Indigenous influence.

6.2 Recognition, Plurality and Political Inclusion Recognition requires a plural political system which treaties and the Voice would help to establish. Recognition presumes substantive inclusion, for example, in a public health system that is made effective by its attention to cultural and political determinants of health (O’Sullivan 2017). Inclusion, also, in a political system that makes decisions according to principles of public reason, where culturally informed aspirations and expectations, may influence the ways in which decisions are made. While Hobbs (2018) argues that establishing institutions to recognise plurality ‘should not come at the expense of a shared identity’ (p. 325), there is no basis for a national identity inclusive of Indigenous peoples, unless there is explicit institutional recognition of independent Indigenous nationhood on the one hand, and substantive Indigenous capacity to participate in state decision-making, on the other. Inclusion is an outcome of resistance to the colonial state. It allows an incremental weakening of colonial hegemony in favour of an Indigenous politics of presence. Resistance is an expression of Indigenous nationhood, but it also requires looking towards ‘another world of pluralism concerned not just with political claims but with the ways in which power relationships act on civic capacities’ (Tully 2008, p. 301). Inclusion in the nation state, requires that public decision-making accepts plural voices in substantive ways, and in ways that make sense according to Indigenous epistemologies. Inclusion therefore requires one to ask whether liberalism really does require that limited procedural values, and not necessarily substantive policy measures, are sufficient to protect the Indigenous person’s liberty, in the same ways that procedural arrangements are sufficient to protect the freedom of any citizen. Are

6

RECOGNITION, PLURALISM AND PARTICIPATION

131

rights beyond these, such as those grounded in prior occupancy, illegitimate? Are the conditions of equality satisfied simply and entirely by the right to vote or by the right to go to school, even if one’s vote has lesser capacity for personally meaningful influence, or if schooling is not established to satisfy culturally reasoned aspirations? Is it, for example, sufficient for one’s vote to be an instrument of equal individual value, or should it contribute to a collective Indigenous voice, as a distinctive voice with the same influential capacity as any other? Is it reasonable for public education systems to foster Indigenous assimilation into a culturally homogenous society or should they be required to support Indigenous people to live as Indigenous, recognising that people are by nature different and admitting that everybody need not be equal in the same ways? Recognising, too, that conceptions of liberty are grounded in culture, and for Indigenous peoples, must be responsive to colonial context? Equality as sameness requires a singular view of cultural worth. Colonialism relies on Indigenous peoples being at the bottom of that scale of cultural worthiness, and it cannot therefore entertain equality. Education, health care and land rights are, for example, claimed in different ways to reflect liberal freedom. One is not free if one cannot go to school in one’s own language. One is not free if one cannot hold and use land in culturally meaningful ways. In these examples, plural political arrangements are essential constituents of freedom. Liberalism cannot be presented as an absolute and unchangeable set of presumptions. Nor, then, are liberalism and pluralism incompatible, in the way that Kekes (1992) imagines when he argues that pluralism is ‘the rejection of the view that there is or should be any combination of values which always overrides any other value’ (Kekes 1992, p. 141), or when he argues that pluralists are distinguished by the fact that they do not accept a single commitment to anything, except plurality itself. Freedom, equality and human rights—are not absolute concepts incapable of plural interpretation. However, this does not make pluralism the kind of anarchy that Kekes (1992) seems to imagine. Pluralism is not a political order where there are no rules, where rules are unnecessary because there is no need for agreement on just terms of association; people may simply do as they please. The argument, against pluralism, is that an overriding commitment to some greater sense of justice is not possible because there is not a requirement to agree on what might constitute that standard of justice. However, in real world

132

D. O’SULLIVAN

practical politics, where the right to self-determination is asserted and constrained, one does not have to choose between being a liberal or being a pluralist. One may not need to be either. Though, examining the intellectual compatibilities and incompatibilities between the two does help one to understand liberalism better. Pluralism tests liberalism. In doing so, it draws out the breadth of liberal possibility and helps to identify what this internationally prevailing political paradigm offers as a way of thinking about the claim to self-determination. Liberalism’s capacity to admit different conceptions of the good life, and its concern for liberty, means that it cannot foreclose arguments for self-determination. Indeed, as Raz argues, in a quote that Kekes (1992) himself uses: ‘it is probably true to say that no political cause, no one vision of society nor any political principle has commanded the respect of all liberals in any given generation, let alone through the centuries’ (Raz, cited in Kekes, p. 143). This is because liberalism is concerned with the freedoms of a plurality of peoples. It is not a singularly inflexible value system. Its durability, and its possibilities for Indigenous self-determination, rests on the fact that liberalism itself is plural. Pluralism does not disturb the essential liberal idea that when two sets of values are in conflict, the point at which one group’s values becomes objectionable, is when the second group is prevented from living according to its preferred values. Therefore, if the liberal state is neutral, indigeneity can never be a democratic disability. Colonial hegemony occurs when this liberal presumption is dismissed, because one is then free to impinge on the freedom of others and assert that one’s own freedom has a greater moral worth. Pluralism, in contrast, requires respect for another’s values, culture or political system. But respect does not mean that one should curtail one’s own freedom in order to admit the claims of others. The respect that is owed to another group, is a respect for its rights, not for its self-interest. Significantly, the Indigenous right to control of their own affairs does not diminish the rights of others, which means that pluralism may be understood as ‘a truer and more humane ideal than the goals of those who seek … great, disciplined, authoritarian structures.… [Pluralism] recognize[s] the fact that human goals are many, not all of them commensurable, and in perpetual rivalry with one another’ (Berlin 1969, p. 171).

6

6.3

RECOGNITION, PLURALISM AND PARTICIPATION

133

Pluralism: Equality Through Difference

Pluralism is committed to the idea that it is legitimate for people to hold different values and that it is reasonable for consequently different claims to arise. The claim to the values and practices that admit linguistic recognition in public life is an example that the Treaty of Waitangi upholds. Public institutions do not operate neutrally if Indigenous people are only able to participate in a language that is not their own. Conversely, M¯aori political status was raised by the language being recognised as an official national language in 1987, so that it may be used in schools, parliament and judicial proceedings, for example (New Zealand Government 1987). Pluralism ought to minimise conflict over the values and practices that prevail in public life, though it is still not able to provide an a priori way of settling conflict, which Kekes (1992) argues is a deficiency. One implication of the plurality of incommensurable values is that there can be no formula, no blueprint, no overarching model that could yield a canonical method of conflict-resolution. (p. 143)

Nevertheless, there is an important distinction between those cases where two sets of rights come into conflict, and those where one set of interests or desires conflicts with a set of rights. It is, indeed, more often a conflict between Indigenous rights and settler self-interest that pluralism must address. However, Mill’s harm principle—the idea that one’s freedom is limited only at the point at which it harms others—is useful only to the point that harm is objectively and consistently definable. When the definition of harm is culturally contested, non-colonial societies need to find means of protecting Indigenous peoples from harm according to their own values; not according to the values of the coloniser. The ways in which public institutions like schools, hospitals or police forces operate, can be deeply harmful to Indigenous peoples and their freedom to be Indigenous. Responses to these possibilities in public health and education systems are raised later in this chapter, and in the two following chapters. The ways in which markets for public services operate often curtail Indigenous freedom because even if not consciously setting out to do harm, the ways in which dominant populations exercise their freedom can create normative values to the exclusion of others. Harm is relative to one’s perspectives and aspirations, which must be taken into account if

134

D. O’SULLIVAN

liberal societies are to respond to the consequences of harm. For Indigenous peoples and their capacities to function as self-determining citizens, and as members of self-determining Indigenous nations, ‘the virtue of the liberal view’ is clear, ‘it takes seriously the idea that, where people disagree about what is good and what is right, the issue should not be settled by the exercise of power to enforce the dominant view’ (Kukathas 2008, p. 38). Yet, it is not the common Indigenous experience for this elementary liberal presumption to protect them from subjective and different understandings of harm. Colonial systems cannot resolve this contradiction. Their existence depends on it, and they are often simultaneously the cause of conflict and the arbiter of its settlement. It is, therefore, a significant intellectual conflict that must be addressed to relieve the contemporary state of its colonial character. Indigenous peoples’ political capacities depend on working out forms of conflict resolution that accept plurality in the workings of the state, and the question for liberals is how different values can be accepted without bringing societies into conflict. However, it is still necessary to consider that the foundational reason for Indigenous conflict with the state is one-sided colonial aggression. Conflict remains in colonialism’s necessarily exploitative logic and in its dependence on the deprivation of Indigenous political authority. These values prevent the construction of a liberal society as one ‘in which all seek, and in principle are granted the right, to live by values they cherish—or at least, not to live by values they cannot abide’ (Kukathas 2008, p. 37). Eliminating the reasons for conflict may require dominant populations to accept that certain fundamental liberal values apply equally to all citizens: participatory parity, deliberative decision-making processes, freedom of association and the universal right to self-determination. Indeed, the capacity to live by values one cherishes reflects the Indigenous right to culture, as it is protected by the UN Declaration on the Rights of Indigenous Peoples. ‘Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture’ (UN 2007, art. 8(1)), which means that state created obstacles to the right to culture are the denial of an inherent right, rather than a reflection only of the state’s failure to recognise or tolerate multicultural diversity. In New Zealand, the Waitangi Tribunal responds to liberty being understood in different ways by different peoples, and to liberty not being fully ingrained into the workings of the state. The Tribunal findings and recommendations contribute to incremental steps towards equality

6

RECOGNITION, PLURALISM AND PARTICIPATION

135

through differentiated citizenship. The proposed Makarrata Commission may similarly contribute, and a treaty’s effectiveness is influenced by how well equipped it is to mediate conflicts over the nature of justice. Rawls (1971), for example, argues that justice, rather than rights per se, is paramount. ‘Justice is the first virtue of social institutions … an injustice is tolerable only when it is necessary to avoid even greater injustice’ (pp. 3–4). However, for Dworkin (1978), equality should be liberalism’s underlying concern, ‘a certain conception of equality … is the nerve of liberalism’ and that conception ‘requires that the government treat all those in its charge as equals, that is, as entitled to equal concern and respect’ (pp. 115, 125). Equality is an essential liberal commitment even though its contested form and meaning, with respect to Indigenous peoples, stands between the colonial present and a potentially non-colonial future. This conflict over the meaning of equality does not diminish liberals’ shared view that in one way, or another, equality is essential to a just political order. If plurality is preliminary to Indigenous equality one must, in a liberal society, be able to demonstrate that the two concepts are not only compatible, but have a potentially transformative symbiotic relationship. Larmore (1987) demonstrates a simple and far-reaching consistency between liberalism and plurality. In turn, this consistency, establishes a logical compatibility between liberalism and the right to selfdetermination. This is because reasonable disagreement over what constitutes the good life is not inherently harmful. The politically neutral state has no reason, therefore, to presume the superiority of a non-Indigenous interpretation of the good life. It has no reason to presume that such an interpretation must determine how public institutions operate. The basic needs of citizens ought to be met whatever their conceptions of the good life. In modern times we have come to recognize a multiplicity of ways in which a fulfilled life can be delivered, without any perceptible hierarchy among them. And we have also been forced to acknowledge that even when we do believe that we have discerned the superiority of some ways of life to others, reasonable people may often not share our view. Pluralism and reasonable disagreement have become for modern thought ineliminable features of the idea of the good life. Political liberalism has been the doctrine that consequently the state should be neutral. The state should not seek to promote any conception of the good life. [T]he neutrality of the liberal state … Is not meant to be one of outcome, but rather one of procedure. That is, political neutrality consists in a constraint on

136

D. O’SULLIVAN

what factors can be invoked to justify a political decision. Such a decision can count as neutral only if it can be justified without appealing to the presumed intrinsic superiority of any particular conception of the good life. (pp. 43–44)

A particular conception of the good life does not need to be superior to justify its influence. It simply needs to make sense to those who follow it, serve their needs, and be subject to constraint only by the need to respect the rights of others to do the same. This account of pluralism is based on a moral presumption that contests colonial imposition, and recognises that ‘human lives can be good in many different ways’ (Kekes 1992, p. 142). However, states are not acultural, even if their modes of operation do not presume a superior way of being.

6.4

Pluralism, the State and Participatory Parity

For those not involved in making decisions about the values and aspirations that public institutions should follow, these institutions may reflect a different and alien way of being. For Indigenous peoples, they may reflect a foreign conception of the good life, and thus be unable to support the equal participation in public life that liberals might ordinarily defend. The state may never, realistically, be able to reflect the full range of conceptions of the good life that its citizens hold. But in managing non-colonial possibilities, there are degrees to which different conceptions of the good life should be able to shape and influence public institutions. The state may not therefore have the same obligation to voluntary migrants as it does to the people whose value systems it has displaced. For example, according the same recognition to the languages of immigrant minorities may undermine Indigenous languages by reducing them to several among many entitled to public standing. The distinction shows that Indigenous claims are not requests for political concessions, but to distinctive and inherent political status. Substantive recognition by the state should simply occur. Substantive recognition is not something that a group of citizens might seek on the understanding that the democratic process might legitimately reject it. Indigenous conceptions of what the state should be, and how their voices may shape its character may otherwise be crowded out; not heard in a reasoned and on-going debate about what would make the state just. Such debate may, however, raise questions such as:

6

RECOGNITION, PLURALISM AND PARTICIPATION

137

Does there exist a ‘neutral’ point of view from which a system of differentiated citizenship can be formulated in a just and fair way? How is it that ‘we’ – whoever ‘we’ are - can be so sure of what ‘they’ - whoever ‘they’ are - really want? And how is it that ‘we’ came to be in a position of granting or denying recognition to ‘them’ in the first place? Who is this ‘we’ that gives the gift of a liberal multiculturalism? (Day 2001, p. 181)

Liberals have ‘argued vigourously among themselves about the basis upon which people’s pursuit of their different and potentially conflicting purposes should be regulated’ (Kukathas 2008, p. 37). Yet, it is possible for many conceptions of the good life to hold the same moral worth. For this presumption to be consistent with the right to self-determination, the rights enunciated in the UN Declaration on the Rights of Indigenous Peoples and, in New Zealand the Treaty of Waitangi, one must be able to admit the distinctive claims of prior occupancy. Yet, it is also conceptually misleading to describe self-determination as an exclusive and theoretically unproblematic ‘right of a ‘‘people’’ to determine its own destiny independent of external interference’ (Day 2001, p. 183). Interference may be avoided and curtailed by the construction of a plural and inclusive state, but influence is inevitable. Self-determination means that one may respond to those influences on one’s own terms and for one’s own purposes. Constraining, for example, the colonial state’s overly enthusiastic interventions into the care and protection of Indigenous children, or managing the state’s obligation to educate Indigenous children vis-a-vis the Indigenous nation’s right to determine the nature and purpose of that education. Similarly, there is a state obligation to provide all citizens with equal access to equally effective health care, which must be addressed alongside the Indigenous nations’ right to approach health policy as a matter of self-determination. These are distinctive claims of prior occupancy which are realised at the confluence of state obligations and Indigenous capacities. While Hobbs (2018) is correct to argue that Scotland, Catalonia and Québec show that democracy can ‘accommodate… plural peoples sharing a state’ (p. 316), a distinguishing characteristic of these examples is that jurisdiction is exercised over discrete territories. Their experiences do not answer the essential question for most Indigenous Australians of how self-determination is exercised by people who do not live on their own countries, perhaps having been forcibly displaced, or whose countries are occupied predominantly by settler populations.

138

D. O’SULLIVAN

Fraser’s (2003) participatory parity provides a partial response when it proposes that all people ought to be able to participate in public life as peers. Participatory parity allows Indigenous peoples to transcend partnership in public life in favour of participation; to transcend the interest group or the status of stakeholder in favour of citizenship, which requires independence and political voice (Fraser 2003), and which is preliminary to self-determination. But what scope is there within the liberal democratic state for ‘participatory parity’ (Fraser 2003) of sufficient consequence to allow ‘relative yet relational autonomy between peoples, each of which is autonomous in their jurisdiction’ (Maaka and Fleras 2000, p. 97)? What are the further institutional and cultural values that create space for this kind of differentiation; and how might public policy ‘close the gap’ in Indigenous disadvantage, not as an end in itself but as a precondition for genuinely equal and meaningful citizenship responsive to the rights of culture and prior occupancy? Responsive, too, to colonial experience and to development as Indigenous peoples positively define it for themselves, rather than development as correcting deficits in Indigenous health, education, employment or housing, for example. Participatory parity’s distinguishing aspirations include political presence strong enough to ensure that Indigenous people may test and contest others’ claims. Always able to confront policies that are inconsistent with their interests and values. Participatory parity means that Indigenous reasons will be heard, and can be framed, to show the unreasonableness of another’s position. It means that liberal understandings of equality are extended to consider the substantive as well as the procedural. Participatory parity is a valuable analytical tool for working out what is just and what is not in distributing citizenship’s political capacities. Like the politics of indigeneity, Fraser’s theory of justice emphasises the ‘social factors of moral autonomy’ (p. 6). It is therefore equipped to develop the principle of parity in specific context. The context, for example, of Indigenous people expecting that they may live lives that they have reason to value (Sen 1999). Participatory parity is consistent with the Treaty of Waitangi. In Australia, the Voice would be a step towards making participatory parity a normative political expectation. Participatory parity has far reaching implications for how public institutions work and how policy decisions are made. It provides a liberal rationale for guaranteed M¯aori seats in parliament and for M¯aori presence at all other levels of the policy process. However, Day (2001) argues that participatory parity’s focus is on greater

6

RECOGNITION, PLURALISM AND PARTICIPATION

139

integration into the state; whereas Indigenous peoples may be inclined to prefer greater autonomy. For example, in contemporary colonial politics, the liberal commitment to pluralism is most forcefully overlooked in respect of the alienation of Indigenous lands for resource extraction (O’Sullivan 2019). This setting aside of liberal equality for Indigenous land owners occurs when the state assumes that the commercial aspirations of a mining company embody a set of values that should override an Indigenous people’s preference for land conservation. This view is so well established in contemporary colonial thought that even the High Court of Australia’s Wik judgement, which held that native title could co-exist with pastoral leases, was unequivocal in maintaining that in the event of conflict between these two forms of land title it was the native title right that would yield (High Court of Australia 1996). In a similar assertion of colonial authority, Queensland’s Wild Rivers Act 2005 overrode Indigenous environmental management practices and limited the Indigenous right to derive sustenance from the natural environment and develop it in keeping with practices established over thousands of years. The Act explicitly mis-recognised native title (Gusmerini 2006), and was repealed in 2014 because, in the view of the chairperson of the Cape York Land Council: This legislation… jeopardise[s] future development and enterprise for Aboriginal people of the Cape hoping to become self sufficient with the return of their traditional country through business enterprises such as cattle, development and other activities. It also restricts the traditional use of some water systems in Cape York. (Ross, cited in O’Sullivan 2017, p. 127)

Like legislation in New Zealand in 2004, which undermined M¯aori customary rights to the foreshore and seabed, these constraints on native title showed the state’s unease with liberal equality when equality requires interpretation and application in specific cultural context, and with regard to enduring rights of prior occupancy (O’Sullivan 2017).

6.5

Participation and Policy Entrepreneurship

Self-determination’s full possibilities require that autonomy and substantively equal participation are not seen as opposite and incompatible ends on a continuum. Autonomy and participation are different but

140

D. O’SULLIVAN

complementary. They are equally important expressions of the right to self-determination. They coexist as differentiated liberal citizenship and each must be considered for its contribution to the fullest possible expression of the right to self-determination. Differentiated citizenship is plural citizenship. For example, to do justice to themselves, Indigenous peoples must prove to themselves the legitimacy of their claims. The freedom to do this according to their own conceptions of justice and with reference to their own understandings of what constitutes the good life is important. Organising political systems able to admit independent Indigenous thought and priority setting is preliminary to reasoned policy development. Indigenous policy actors have usually not, for example, admitted that their accounts of the lives that they want to lead could be fully met through policies to close statistically measurable gaps in relation to health, education and housing under the Closing the Gap in Indigenous Disadvantage policy, for example. There was minimal Indigenous involvement in developing this policy which was adopted by the Council of Australian Governments (Parliament of Australia 2020) in 2008, and has since been the most prominent of state Indigenous policies. Its objectives were reasonable as public commitments to egalitarian justice, but they did not attend to wider Indigenous conceptions of well-being, the right to live as Indigenous, or attempt to close the ultimate gap in Indigenous disadvantage, the gap in political authority. The policy targets adopted in 2008 were to: • close the gap in life expectancy by 2031 • halve the gap in child mortality by 2018 • ensure 95 percent of Aboriginal and Torres Strait Islander four-yearsolds are enrolled in early childhood education by 2025 • halve the gap in reading, writing and numeracy by 2018 • halve the gap in year 12 attainment by 2020 • halve the gap in employment by 2018 (Parliament of Australia 2020, What is closing the gap?, para. 4). In 2014, a further target was added: ‘close the gap in school attendance by 2018’ (Australian Government 2019). In 2019, revised draft targets were released following Indigenous involvement in a policy review, and were agreed to by Commonwealth, State and Territory governments and Indigenous civil society, including bodies such as the

6

RECOGNITION, PLURALISM AND PARTICIPATION

141

Congress of Australia’s First Peoples, National Aboriginal and Torres Strait Islander Health Workers’ Association, the National Aboriginal and Torres Strait Islander Legal Services and the National Aboriginal Community Controlled Health Organisation. The differences, and the broader scope of the proposed targets, is clear across eight priority areas: ‘Families, children and youth; Health; Education; Economic development; Housing; Justice, including youth justice; Land and water; and cross system priorities’ (Australian Government 2020, draft targets). By way of example, the draft sets two Outcomes and two Targets for health policy. The Outcomes are that: ‘Aboriginal and Torres Strait Islander people enjoy long and healthy lives’ and that ‘Aboriginal and Torres Strait Islander children are born healthy and strong’. The Targets are to: ‘Close the gap in life expectancy between aboriginal and Torres Strait Islander and non-Indigenous Australians within a generation, by 2031’ and ‘By 2028, 90-92% of babies born to Aboriginal and Torres Strait Islander mothers have a healthy birthweight’. The three Education Outcomes are: ‘Aboriginal and Torres Strait Islander students succeed at school’, ‘Aboriginal and Torres Strait Islander students stay in school’, ‘Aboriginal and Torres Strait Islander students reach their full potential through further education pathways’. The four Targets are to: ‘Increase the proportion of Aboriginal and Torres Strait Islander students in the top two bands of NAPLAN [National Assessment Program – Numeracy and Literacy] reading and numeracy for years 3, 5, 7 and 9 by an average of 6 percentage points by 2028’, ‘Decrease the proportion of Aboriginal and Torres Strait Islander students on the bottom two bands of NAPLAN reading and you received for years 3, 5, 7 and 9 by an average of 6 percentage points by 2028’, ‘Halve the gap in attainment of Year 12 or equivalent qualifications between Indigenous and non-Indigenous 2024 year-olds by 2020’ and to have ‘47% of Aboriginal and Torres Strait Islander peoples (aged 20-64 years) completed Certificate III or above, including higher education, by 2028’ (Australian Government 2020, draft targets). Several factors may have contributed to the government coming to accept that Indigenous people should, in fact, be involved in the policy’s refinement. Civil society’s advocacy in favour of ‘Close the Gap’ as an Indigenous led alternative to ‘Closing the Gap’ drew attention to the case for Indigenous participation. The Australian National Audit Office’s report on failings in the Government’s Indigenous Advancement Strategy

142

D. O’SULLIVAN

in 2017 drew similar attention to Indigenous exclusion as an underlying variable contributing to policy failure. The report found that: The implementation of the Strategy occurred in a short timeframe and this affected the department’s (of the Prime Minister and Cabinet) ability to establish transitional arrangements and structures that focused on prioritising the needs of Indigenous communities. (Australian National Audit Office 2017, p. 8)

It also found that: The Department’s grants administration processes fell short of the standard required to effectively manage a billion dollars of Commonwealth resources. The basis by which projects were recommended to the Minister was not clear and, as a result, limited assurance is available that the projects funded support the department’s desired outcomes. Further, the department did not:

• assess applications in a manner that was consistent with the guidelines and the department’s public statements; • meet some of its obligations under the Commonwealth Grants Rules and Guidelines; • keep records of key decision; or • establish performance targets for all funded projects (Australian National Audit Office 2017, p. 8). The Audit Office also found that Indigenous people’s exclusion means that one cannot presume that the policy was well informed: The performance framework and measures established for the Strategy do not provide sufficient information to make assessments about program performance and progress towards achievement of the program outcomes. The monitoring systems inhibit the department’s ability to effectively verify, analyse or report on program performance. The department has commenced some evaluations of individual projects delivered under the Strategy but has not planned its evaluation approach after 2016–17. (Australian National Audit Office 2017, p. 8)

6

RECOGNITION, PLURALISM AND PARTICIPATION

143

The Government consequently increased its interest in ‘consultation’, which created windows of entrepreneurial opportunity to extend that concept to more substantive participation. The distinction between consultation and participation is most important. Consultation means that Indigenous people may respond to state policy, but their views may be ignored. Equally, they may lead to modifications or affirmations of a policy proposal. Participation, however, means that Indigenous people are, as a matter of course, involved and may make leading contributions at each stage of the policy process. From development to implementation, to evaluation and refinement. Participation is an act of agency and leadership, whereas consultation is the opportunity to respond as a subject. Participation may be entrepreneurial, where policy entrepreneurship involves responding to new and often unexpected opportunities to influence policy agendas. Influence is possible because policy is ‘a choice in a situation of ambiguity, where there are many competing ways to see a problem… There is a political struggle to control ambiguity’ (Fisher et al. 2019, p. 173). Ambiguity creates opportunities for the policy entrepreneur through careful attention to these political struggles where ‘problems, policies and politics do or don’t come together’ (Fisher et al. 2019, p. 173). Entrepreneurship is a process of filling ambiguous spaces with concrete ideas. However, opportunities for policy entrepreneurship are not evenly distributed. They are unpredictable, just as Fisher et al. (2019) argue that problems, policies and politics are unpredictable. There is not always clear philosophical alignment between the cause of a problem and government proposed solutions. As a voter, each person sits somewhere in the policy process, but beyond that, among members of parliament, the executive, bureaucracy, lobbyists and other citizens, not all positions are equally influential. Though entrepreneurship does also arise from other sites of influence. For example, from Indigenous civil society and the Indigenous academy. Policy ambiguities and political struggles can be observed from these vantage points and, at moments of entrepreneurial opportunity, definite paths to the resolution of ambiguity may be proposed. Working out these paths and being well-placed to respond to new opportunities is an important political determinant of effective public policy. It is from this perspective that Fisher et al. (2019) ask, for example: which factors within

144

D. O’SULLIVAN

policy development processes facilitate or present barriers to social determinants of health (SDH) getting onto the policy agenda (p. 174)? Which factors allow policy entrepreneurs to pursue windows of opportunity? One important example of policy entrepreneurship flowed from the Indigenous Health Equity Statement of Intent, signed in 2008, by the Commonwealth and the National Aboriginal Community Controlled Health Organisation, the Congress of Aboriginal and Torres Strait Islander Nurses, the Australian Indigenous Doctors’ Association, the Indigenous Dentists’ Association of Australia and the state Human Rights Commission’s Aboriginal and Torres Strait Islander Social Justice Commissioner. The Statement responded to Indigenous criticisms of the exclusively state-led ‘Closing the Gaps’ policy framework. It reflected a new set of philosophical presumptions about how and by whom Indigenous health policy would be made, and committed: • To developing a comprehensive, long-term plan of action, that is targeted to need, evidence-based and capable of addressing the existing inequities in health services, in order to achieve equality of health status and life expectancy between Aboriginal and Torres Strait Islander peoples and non-Indigenous Australians by 2030. • To ensuring the full participation of Aboriginal and Torres Strait Islander peoples and their representative bodies in all aspects of addressing their health needs. • To working collectively to systematically address the social determinants that impact on achieving health equality for Aboriginal and Torres Strait Islander peoples. • To building on the evidence base and supporting what works in Aboriginal and Torres Strait Islander health, and relevant international experience. • To supporting and developing Aboriginal and Torres Strait Islander community-controlled health services in urban, rural and remote areas in order to achieve lasting improvements in Aboriginal and Torres Strait Islander health and wellbeing. • To achieving improved access to, and outcomes from, mainstream services for Aboriginal and Torres Strait Islander peoples. • To respect and promote the rights of Aboriginal and Torres Strait Islander peoples, including by ensuring that health services are available, appropriate, accessible, affordable, and of good quality

6

RECOGNITION, PLURALISM AND PARTICIPATION

145

(Australian Human Rights Commission 2008, accordingly we commit, para. 1). These principles created an opportunity to bring clarity to ambiguity and in 2011, Indigenous health policy actors established a National Health Leadership Forum. Together with the National Aboriginal Community Controlled Health Organisations, the Forum provided national coordination and coherence to public policy and allowed common Indigenous positions to be put to governments. As one participant explained: ‘We were meeting regularly through our structures and developing our common agenda - what we agree on, making sure we are strong and connected’ (Fisher et al. 2019, p. 177). At the same time, ‘Aboriginal health networks… successfully contest[ed] conventional problem conceptions and policy framings offered by government policy actors’ (Fisher et al. 2019, p. 170), to influence the development of a new National Aboriginal and Torres Strait Islander Health Plan (NATSIHP). This 10-year Plan commenced in 2013. A Ministerial Stakeholder Advisory Group led NATSIHPs development. The Minister allowed the National Congress of Australia’s First Peoples to co-chair the Group with the Department of Health and Ageing. Outcomes included agreement to insist that policy would be informed by evidence; the absence of which is a well-established determinant of policy failure. The question of what works in Indigenous health policy and why, and how successful measures might be replicated is a question rarely given sufficient public policy attention (Australian National Audit Office 2017). NATSIHP was innovative and important for the philosophical change that it advanced. The Advisory Group allowed diverse Indigenous participation. Community meetings allowed a cross-section of Indigenous ideas and aspirations to inform NATSIHP and show how networks of representatives from Aboriginal health organisations used a window of opportunity to challenge conventional problem definitions and policy framing, and adopt new paradigms to place SDIH [social determinants of Indigenous health] at the centre of an Australian Aboriginal health policy for the first time. (Fisher et al. 2019, p. 173)

Fisher et al. (2019) argued that potentially transformative principles ‘previously called for by Aboriginal leaders but resisted by government policymakers’ (p. 172), were brought into policy debate. These include

146

D. O’SULLIVAN

‘health equality and a human rights approach, Aboriginal community control and engagement, partnership, accountability, the centrality of Aboriginal Australians’ cultures to health, and commitment to address racism in the health system’ (Fisher et al. 2019, p. 172). There are explicit political values and presumptions underlying each of these principles. For example, community control is an expression of the right to self-determination which is a political rather than social right. Indeed, one of the arguments in favour of community-controlled policy design and delivery is that it confronts race and racism as determinants of health. The relationship between community control and better outcomes for Indigenous people (Fisher et al. 2019) is discussed in Chapter 7. According to one participant in Fisher et al’s (2019) study of NATSIHP, its uncharacteristically inclusive policy development process, meant that with bureaucrats ‘speaking to the broader range of community members they actually could see social determinants, the living, breathing side of social determinants, and what was missing and what was needed if we wanted to achieve that, other than just documents with social determinants written into them’ (p. 180). Another remarked: ‘I just think it was something fairly new for the bureaucracy. It was relatively new for most people in the room who were Aboriginal representatives as well. We were developing the first draft with the bureaucracy, with the government’ (p. 178). Significantly, another participant explained how the state’s willingness to admit a reasoned and deliberative decision-making process drew out a further political determinant of policy efficacy. [W]here we had differences of opinion was... things around the Declaration on the Rights of Indigenous Peoples and can we mention the word ‘rights’ in the plan? That’s where we did get quite a lot of pushback from the Department and indeed the Minister’s office, but again if you’ve got some highly respected individuals and legitimate bodies like the Close the Gap Steering Committee and the NHLF saying the same things, which we all were, they had very little choice and not really anywhere to go in arguing against some of that. (Fisher et al. 2019, p. 180)

The development process was participatory, which is a more robust and comprehensive approach to policy-making. It reflected a stronger Indigenous political standing than consultation, and provided important opportunities for Indigenous policy leadership. However, for public policy

6

RECOGNITION, PLURALISM AND PARTICIPATION

147

processes to reflect the full extent of the right to self-determination, further procedural developments are required. For example, the opening of political space for independent leadership rather than the co-design approach which is presently favoured. NATSIHP is not, for example, an Indigenous policy even though it does reflect Indigenous priorities and aspirations. Partnership does raise Indigenous people’s political standing from people who should be consulted, but it does not raise it to the point of Indigenous people leading and determining, for themselves, how public policies should work in their favour. There was an opportunity to influence decisions, but not the opportunity to make decisions, so the policy still belonged to the state. Indigenous participants shared the role of junior partner, helping the senior partner to achieve a desired outcome. Nevertheless, Fisher et al. (2019) argue that Indigenous leadership gave the wider Indigenous citizenry confidence in the process. It gave people the opportunity to argue that health policy should not be developed in isolation from its determinants. The Plan’s four guiding principles are: 1. Health Equality and a Human Rights Approach 2. Aboriginal and Torres Strait Islander Community Control and Engagement 3. Partnership 4. Accountability (Australian Government 2013, principles, para. 1). From these principles, flow a series of priorities which for the first time, reflect an official state expression of what Indigenous people have said they expect of public health policy. These priorities are: • continually striving to improve accessibility, appropriateness and impact • a robust, strong, vibrant and effective community controlled health sector • based on the best possible evidence • free of racism and inequality • supported by housing, education, employment and other programs focused on eliminating the causes of health inequality • individuals and communities actively engage in decision making and control

148

D. O’SULLIVAN

• social and emotional wellbeing as a central platform for prevention and clinical care • older people are able to live out their lives as active, healthy, culturally secure and comfortable as possible • adults have the health care, support and resources to manage their health and have long productive lives • youth get the services and support they need to thrive and grow into healthy young adults • growth and development of children lays the basis for long, health [sic] lives • mother and babies get the best possible care and support for a good start to life (Australian Government 2013, priorities, para. 2). Participation may explain NATSIHP departing from the deficit assumptions of earlier policy instruments, and taking a strengths-based approach to the treatment of ill-health. Participation is important but ensuring that it develops into leadership and policy ownership has added significance because as Fraser (2003) argues, participatory parity is essential to fairly functioning democratic government. Leading Indigenous presence at every point in the policy process is the point of the Critical Tiriti Analysis approach to policy-making and evaluation that I developed with Came et al. (2020). It proposes that policy-making processes are consistent with the Treaty of Waitangi when, among other considerations, they have demonstrably ensured M¯aori leadership and active participation in the policy process. Like Critical Tiriti Analysis, NATSIHP showed the importance of a more broadly focused conception of the determinants of health as primarily political, rather than just social. Addressing matters such as unemployment or poor education as determinants of ill-health are not primarily social questions. They are questions of decision-making authority. These are important questions for policy makers across policy domains, but prior to that, there is the question of where political authority lies and why.

6

RECOGNITION, PLURALISM AND PARTICIPATION

6.6

149

Conclusion

If recognition is more than a symbolic statement of the fact of Indigenous prior occupancy, it might instead entail state acknowledgement of Indigenous presence as Indigenous. This kind of acknowledgement precludes culturally exclusive public institutions. It precludes the exclusion of Indigenous people and Indigenous epistemologies from decision-making processes. It also precludes their exclusion from helping to determine how and by whom public institutional values are determined. Inclusion does not, however, inhibit individual equality because, as this chapter has shown, plurality provides ways of ensuring that people need not be equal in the same ways. A conception of justice that allows one group to determine the nature of another’s equality is not a conception of justice concerned with substantive liberty. Individual freedom is not an abstract concept. It is culturally contextualised and meaningful only to the extent that people are able to work out its attributes for themselves. Non-colonial political relationships, as the purpose and product of mutual recognition, presume equality through difference. The chapter has shown that pluralism is a condition of participatory parity. It is a condition for the operation of public institutions because, in its absence, culturally framed Indigenous aspirations and expectations of their membership of the sovereign citizenry become a democratic disability. A fundamental inequality therefore arises. Participatory parity presumes that Indigenous policy actors may assume leadership in relation to their own affairs, which as the chapter has shown, is not yet an accepted presumption in Australian public policy. Recent concessions to participation through partnership have been important, but they do not presume the level of political equality that treaties might codify, for example. While the Treaty of Waitangi’s presumption of M¯aori policy leadership is clear, the next chapter shows that it is not always influential, but that its overarching presumption of M¯aori presence is an instructive characteristic for Australian consideration.

References Australian Government. (2013). National Aboriginal and Torres Strait Islander health plan 2013–2023. https://www1.health.gov.au/internet/publications/ publishing.nsf/Content/oatsih-healthplan-toc~overview. Accessed 13 July 2020.

150

D. O’SULLIVAN

Australian Government. (2019). Closing the gap report 2019. https://www.niaa. gov.au/sites/default/files/reports/closing-the-gap-2019/sites/default/files/ ctg-report-20193872.pdf?a=1. Accessed 12 July 2020. Australian Government. (2020). Clsoing the gap. https://closingthegap.niaa.gov. au/draft-targets-for-discussion. Accessed 12 July 2020. Australian Human Rights Commission. (2008). Indigenous health equity statement of intent. https://humanrights.gov.au/our-work/close-gap-Indigenoushealth-equality-summit-statement-intent. Australian National Audit Office. (2017). Indigenous advancement strategy. www.anao.gov.au/work/performance-audit/Indigenous-advancement-str ategy. Accessed 12 July 2020. Berlin, I. (1969). Two concepts of liberty: In Isaiah Berlin’s four essays on liberty. Oxford: Oxford University Press. Came, H., O’Sullivan, D., & McCreanor, T. (2020). Introducing critical Tiriti policy analysis through a retrospective review of the New Zealand Primary Health Care Strategy. Ethnicities, 20(3), 434–456. Day, R. (2001). Who is this we that gives the gift? Native American political theory and the Western tradition. Critical Horizons, 2(2), 173–201. Dworkin, R. (1978). Liberalism. In S. Hampshire (Ed.), Public and private morality (pp. 113–125). Cambridge: Cambridge University Press. Fisher, M., Battams, S., McDermott, D., Baum, F., & MacDougall, C. (2019). How the social determinants of indigenous health became policy reality for Australia’s National Aboriginal and Torres Strait Islander health plan. Journal of Social Policy, 48(1), 169–189. Fraser, N. (2003). Rethinking recognition: Overcoming displacement and reification in cultural politics. In B. Hobson (Ed.), Recognition struggles and social movements: Contested identities, agency and power (pp. 21–32). Cambridge: Cambridge University Press. Gusmerini, P. (2006). The Wild Rivers Act 2005 (Qld). Indigenous Law Bulletin, 6(22), 2. Hobbs, H. (2018). Aboriginal and Torres Strait Islander peoples and multinational federalism in Australia. Griffith Law Review, 27 (3), 307–336. Kekes, J. (1992). The incompatibility of liberalism and pluralism. American Philosophical Quarterly, 29(2), 141–151. Kukathas, (2008). Anarcho-multiculturalism. In G. Levey (Ed.), Political theory and Australian multiculturalism (pp. 29–43). New York: Bergahn Books. Larmore, C. E. (1987). Patterns of moral complexity: Cambridge: Cambridge University Press. Maaka, R., & Fleras, A. (2000). Engaging with indigeneity: Tino Rangatiratanga in Aotearoa. In D. Ivison, P. Patton, & W. Sanders (Eds.), Political theory and the rights of indigenous peoples (pp. 89–109). Melbourne: Cambridge University Press.

6

RECOGNITION, PLURALISM AND PARTICIPATION

151

New Zealand Government M¯aori Language Act. (1987). http://rangi.knowle dge-basket.co.nz/gpacts/public/text/1987/an/176.html. Accessed 3 May 2003. O’Sullivan, D. (2017). Indigeneity: A politics of potential—Australia, Fiji and New Zealand. Bristol: Policy Press. O’Sullivan, D. (2019). Indigenous people no longer have the legal right to say no to the Adani mine: Here’s what it means for equality. The Conversation. https://theconversation.com/indigenous-people-no-longer-have-the-legalright-to-say-no-to-the-adani-mine-heres-what-it-means-for-equality-122788. Accessed 1 July 2020. Parliament of Australia. (2020). Closing the gap. https://www.aph.gov.au/ About_Parliament/Parliamentary_Departments/Parliamentary_Library/ pubs/BriefingBook44p/ClosingGap. Accessed 12 July 2020. Rawls, J. (1971). A theory of justice. Cambridge: Harvard University Press. Sen, A. (1999). Development as freedom. Oxford: Oxford University Press. The High Court of Australia. (1996). The Wik Peoples v The state of Queensland & Ors; The Thayorre People v The state of Queensland & Ors. http://www.aus tlii.edu.au/au/cases/cth/high_ct/unrep299.html. Accessed 12 July 2020. Tully, J. (2008). Two meanings of global citizenship: Modern and diverse. In Global citizenship education (pp. 15–39). Leiden: Brill Sense. United Nations. (2007). Universal declaration on the rights of indigenous peoples. New York.

CHAPTER 7

Beyond Consultation: Participation as Influence

7.1

Introduction

Recognising the Indigenous right to political presence is more farreaching than a simple recognition of the right to culture. It is recognition that culture matters as a determinant of the capacity to participate, with influence, in public affairs. Public institutions that allow the framing of policy problems and policy solutions through a cultural lens are conditions of that influence. People do not frame their expectations of public policy, nor pursue their aspirations from an acultural perspective. In Australia, Indigenous people and aspirations have generally been excluded from the policy process. However, as this chapter explains, there have been recent shifts towards consultation and policy-making partnerships between Indigenous people and the state. These are incremental steps towards recognition, which may be advanced by both the Voice and treaties. The chapter discusses a recent report of New Zealand’s Waitangi Tribunal to provide just one example of how treaties may influence the policy process. It juxtaposes the Tribunal’s finding that in health policy, the Crown has repeatedly breached the agreement, with the recommendations that the Tribunal made for honouring it. The New Zealand experience, and a Canadian example which is also discussed in this chapter, show that there is scope within liberal democratic societies

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 D. O’Sullivan, Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State, https://doi.org/10.1007/978-981-33-4172-2_7

153

154

D. O’SULLIVAN

such as these, and Australia, for Australian models of Indigenous policy participation to be developed beyond mere consultation or partnership. To this end, the chapter considers the democratic arrangements that could be put in place to institutionalise Indigenous policy leadership as an outcome of recognition. It identifies, however, that even in New Zealand with its Treaty as a social contract, there are gaps in the democratic process’ opportunities for M¯aori leaders to be accountable to M¯aori citizens. The chapter considers possibilities for both leadership and accountability to ensure that M¯aori aspirations and ways of framing policy possibilities are institutionalised. It shows that the Treaty of Waitangi provides a framework for that institutionalisation to be pursued.

7.2

Power and Culture

The questions of who is accountable to whom and for what are central to understanding what policy is actually for, and for understanding the presumptions that policy systems hold about the capacities of citizenship and what people may expect of the state. There is a democratic presumption that policymakers are accountable, through parliament, to the citizenry for policy outcomes. The extent to which this presumption is the real experience of Indigenous people tests the strength of their capacities as citizens. The relationship between accountability and policy failure raises questions of power and the distribution of authority within policy systems. Indigenous priorities hold relatively less importance and relatively less electoral value than many other matters of government priority. The Australian Medical Association (2016) has argued that the absence of political will is the main obstacle to designing public policies to reduce the Indigenous incidence of rheumatic heart disease, for example. Public policy is concerned with the choices that governments make to do certain things and to avoid doing other things. The choices are informed by ideology and by the perceived electoral value of making one choice over another. Choices which are, in turn, shaped by the power of civil society and other interest groups to influence public debate. This is why the absence of a structured and secure process for Indigenous peoples to influence public agenda setting is important. Indigenous public policy is not an outcome of the state’s relationships with Indigenous peoples

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

155

alone. It is also an outcome of the state’s relationships with other political actors and how those relationships influence the relative importance that the government of the day attaches to Indigenous priorities. Therefore, the extent to which Indigenous peoples can hold persuasive influence over governments does not rest on the persuasiveness of their arguments alone, but also on institutional arrangements that allow their broader agenda setting influence, as was discussed in relation to the development of the NATSIHP in the previous chapter. But strengthening this example, by making Indigenous leadership a normative part of the policy process, is why the Voice is important and why ACCHOs are important, as an example, of influential leadership at the implementation level of the policy process. ACCHOs create political space for Indigenous policymakers to pursue equality grounded in human rights approaches to health. They help give effect to the United Nations’ Declaration on the Rights of Indigenous Peoples’ presumption that: Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals. Indigenous individuals also have the right to access, without any discrimination, to all social and health services. (UN 2007, Article 24, 1) Indigenous individuals have an equal right to the enjoyment of the highest attainable standard of physical and mental health. States shall take the necessary steps with a view to achieving progressively the full realization of this right. (UN 2007, Article, 24, 2)

As a concept grounded in independent authority, ACCHOs challenge the colonial presumptions of the state. The first ACCHO was established in 1974. In 2020, there are 143 Organisations across Australia, operating over 300 health clinics. Over half their 6000 staff are Indigenous, pursuant to the underlying philosophy of: ‘Aboriginal health in Aboriginal hands’ (NACCHO 2020). ACCHOs are instruments of collective agency. They contest colonialism’s need to position Indigenous people as subjects, and as victims of their own moral deficiencies. Their fundamental premise is that ‘only Aboriginal people can solve Aboriginal problems and they can only be empowered to do this through shared strategies and plans developed in a partnership that is based on equality and recognises and respects their

156

D. O’SULLIVAN

cultures and knowledge’ (Indigenous Implementation Board 2011, p. 1). However, as the NATSIHP example in the previous chapter shows, selfdetermination requires greater political authority than partnership allows. To this extent, it is significant that ACCHO staff are not government employees. They are not street level bureaucrats of the kind that Lipsky (1980) describes. This means that they are not subject to bureaucratic control. They do share the capacity to use their professional discretion for better or worse in the care that they provide to Indigenous people, but also enjoy greater freedom to undertake professional advocacy in favour of policies and practices that counter the categorisation of Indigenous population health as a ‘problem’ to be solved. It is also significant that ACCHOs provide a path beyond what Chambers (2003) suggests is a common liberal argument ‘for a strict separation between state and culture’ (p. 302). The state is cultural because the people it comprises are cultural. Liberals, therefore, ought to be concerned with cultural exclusivity rather than culture per se. The ‘benign neglect’ of culture as Chambers (2003, p. 299) calls it, is not the same as cultural neutrality, which is important to the ways in which public institutions aid or hinder the practice of Indigenous self-determination. Freeman et al. (2019) provide a simple example of how these Organisations challenge the colonial presumptions of the state. The [health] Service engaged in rehabilitative, curative, preventive and promotive work targeting alcohol, including advocacy and collaborative action on social determinants of health. It challenged other government approaches by increasing Aboriginal people’s control, providing culturally safe services, addressing racism, and advocating to government and industry. (p. 532)

Further, Freeman et al. (2019) concluded that ‘community control can challenge colonialism and ongoing power imbalances to promote evidence-based policy and practice that support self-determination as a positive determinant of health’ (p. 532). In 2016, the Australian Institute of Health and Welfare illustrated the point when it found that ACCHOs are 23% more effective at retaining Indigenous patients than other primary health providers, and that they provide greater outcomes per dollar spent. The Institute attributed this success to ACCHOs culturally contextualised modes of practice and

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

157

deep community connectedness overseen by local boards, with a degree of community accountability that is not present elsewhere in public policy delivery. However, addressing racism in health policy is also a matter for system wide attention. The political determinants of the wider health system’s effectiveness in response to these principles requires that processes of accountability to Indigenous people are structured into all levels of the system. Bureaucratic accountability to ministers, through ministers to parliament, and through parliament to the people is, in practice, accountability to the non-Indigenous citizenry. Majoritarian democracy, as it is practised in Australia, does not provide democratic accountability to Indigenous citizens. The Minister for Indigenous Australians’ proposal for an Indigenous voice to government may narrow that accountability gap, by providing a voice to the executive and bureaucracy, but its intention is not to eliminate the gap in the ways that might occur under a Voice to parliament, which would be a voice to the Australian people. Treaties might, therefore, include measures to secure Indigenous bureaucratic leadership, accountable to a formally recognised Indigenous polity. The simple presence of a Voice to parliament would strengthen and complement such arrangements, by ensuring that Indigenous people could directly speak to, and be spoken to as participants, rather than subjects of the public decision-making system.

7.3 The Waitangi Tribunal Health ¯ Inquiries (2019) and Maori Policy Leadership In New Zealand, in 2018, a series of claims arguing that the Crown’s primary healthcare framework was ineffective for M¯aori, and a breach of the Treaty of Waitangi, were put to the Waitangi Tribunal. The Tribunal’s report, and a number of the claims themselves, drew out the importance of M¯aori policy leadership and accountability to M¯aori for policy success as the basis of more just and effective modes of operation. The New Zealand Public Health and Disability Act 2000 sets out the primary health care system’s purposes and administrative structure, which are the prevention and treatment of health conditions to reduce the need for hospital level care (New Zealand Government 2000). Improving M¯aori health outcomes is among the Act’s explicitly stated purposes, responding to M¯aori life expectancy not having improved since the 1970s, and to the incidence of avoidable M¯aori hospitalisations being 60% greater

158

D. O’SULLIVAN

than for other citizens (Waitangi Tribunal 2019). It is not, however, for the lack of legislative or bureaucratic intent that M¯aori health outcomes have not improved. Indeed, during hearings on a claim to the Waitangi Tribunal in 2019, concerning the national primary health policy framework, the Crown accepted that different approaches to M¯aori health were necessary (Waitangi Tribunal 2019), and the Director-General of Health conceded that the health and disability system was failing in its ‘core business’ (Waitangi Tribunal 2019, p. 17). The Crown acknowledged colonisation’s ongoing impact, but also argued that the pursuit of equity ought not be controversial (Waitangi Tribunal 2019). A contradiction likely to mitigate against coherent public policy, and which needs to be resolved if the New Zealand Public Health and Disability Act 2000 is to realise its further aim, which is ‘to achieve equitable health outcomes for M¯aori and other population groups’ (Waitangi Tribunal 2019, p. 164). The argument that the Crown’s policy leadership helps to explain failure is not necessarily an argument for stronger partnership as the Tribunal proposes (Waitangi Tribunal 2019). It might instead be an argument for M¯aori policy leadership. An argument for the M¯aori citizen to be genuinely and substantively one who deliberates (Aristotle in Hindess 2002). Contemporary M¯aori health policy and the role that the Treaty should play in policy development is complex and contested. In 2018, the Waitangi Tribunal was asked to consider that the primary healthcare framework has failed to achieve M¯aori health equity, and further, that the framework is not sufficiently fit for that purpose in its current state. In particular… [claimants] raised concerns about the role of, and resourcing for, M¯aori-led primary health organisations and health providers, and broadly argued that M¯aori were not able to exercise tino rangatiratanga in the design and delivery of primary health care to their own people. (Waitangi Tribunal 2019, p. 1)

Among the more egregious propositions put to the Tribunal was ‘an alleged disparity in the quality of health services provided to M¯aori and non-M¯aori’ (Waitangi Tribunal 2019, p. 3). It was also alleged that M¯aori primary health providers were not as well funded by the state (Waitangi Tribunal 2019, p. 8). Significant because institutional measures to ensure ongoing self-determination, through M¯aori service provision, tend to support better outcomes (O’Sullivan 2015).

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

159

One claimant argued that the Crown’s failure to protect M¯aori health and well-being was a breach of its obligation to provide good government. It was also claimed that the exclusion of M¯aori from decision-making obstructed effective policy outcomes (Waitangi Tribunal 2019). While good government is an obligation implicit in the Treaty’s Preamble, and a reasonable expectation that any citizen has of the state, it is important that this is not framed as an obligation to ‘do justice’ to M¯aori as passive recipients of state benevolence, which is perhaps why the New Zealand M¯aori Council argued for a ‘M¯aori Health Care Agency’, and another claimant argued for the establishment of Independent M¯aori Statutory Boards to which each District Health Board would be accountable for improvements in M¯aori health (Waitangi Tribunal 2019). Rangatiratanga, and interpreting citizenship as a body of political and social capacities, rather than simply as a body of rights, means that the state stepping aside to create space for M¯aori agency is important and justifiable. It is not the state’s function alone to ensure equitable health outcomes because this is a denial of M¯aori agency. In particular, it is the denial of the inherent nature of self-determination as the capacity to make decisions and pursue objectives for oneself and for one’s own reasons. While self-determination is a fundamental human right, it is also a pragmatic political right. Its place as a determinant of effective policy outcomes means that Indigenous people must be able to say that ‘this is what we want to achieve and this is the political space or body of capacities that we need to do it’. Nevertheless, these aspirations are obstructed by prejudice which another claimant said was evident in Crown ‘actions and omissions’ as causes of relatively poor outcomes across a range of health indicators. For example, mental health, alcohol and substance abuse, cancer, obesity and the incidence of suicide (Waitangi Tribunal 2019, p. 13). An expert witness told the Tribunal that the presence of inequities in the burden of disease, over a long period of time, means that M¯aori ‘should have been using primary care services more than other populations’ (Waitangi Tribunal 2019, p. 18). M¯aori nurses argued that institutional racism meant that nurses working for M¯aori entities were less well remunerated than nurses doing similar work elsewhere in the health system. They argued that ‘building a sustainable and properly paid M¯aori nursing and health workforce is essential to addressing inequities and disparities in M¯aori

160

D. O’SULLIVAN

health’ (Waitangi Tribunal 2019, p. 14). In support of the argument that the presence of M¯aori values, not just M¯aori people in policy systems is important, another claimant argued that the primary health care system pays inadequate regard to ‘M¯aori tikanga, values and practices when dealing with M¯aori and treating M¯aori patients’ (Waitangi Tribunal 2019, p. 14). In other words, the human right to culture was compromised even though it is a well-recognised determinant of health. Indigenous cultural epistemologies legitimately influence policy implementation (United Nations 2007); a presumption which is implicit in the Treaty of Waitangi’s protection of M¯aori taonga (matters of esteemed cultural significance). It was, therefore, as a matter of self-determination that the Tribunal considered ‘the accommodation of matauranga M¯aori [M¯aori knowledge] and rongoa M¯aori [M¯aori medicine] in health policy and the delivery of mainstream health services’ (Waitangi Tribunal 2019, p. 3). The Tribunal was also told that institutional racism can be as simple as ‘inaction in the face of need’ (Waitangi Tribunal 2019, p. 21). In his evidence, the Director-General of Health not only demonstrated that the Crown’s understanding of the relationship between racism and poor outcomes was clear, but explained its character as a political, rather than social or simply accidental, determinant of health: socio-economic deprivation for M¯aori impacts on their ability to access good health but it is compounded by other factors including racism. The impact of personal and institutional racism is significant on both the determinants of health and access to an outcome from healthcare itself. Racism is associated with poorer health, including poorer mental health. (Waitangi Tribunal 2019, p. 21)

As Strakosch (2019) argued in Australia, the question is not one of whether there is policy failure, but one of establishing the reasons for policy failure and the extent to which discrimination and exclusion are explanatory variables, so it was significant for the Crown to agree that ‘the state of M¯aori health outcomes indicates persistent, systemic problems in the primary healthcare sector’ (Waitangi Tribunal 2019, p. 1). Nor did the Crown object in principle to M¯aori exercising tino rangatiratanga ‘through engagement with M¯aori models of health care’ (Waitangi Tribunal 2019, p. 11). However, it ‘emphasised that the intentions of the [policy] framework are good and that the fundamental aims

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

161

and settings of the system are sound, but that the framework has simply not been effectively implemented’ (Waitangi Tribunal 2019, p. 11). The Crown’s contextualisation of relatively poor M¯aori health outcomes was inconsistent. It argued [that] an ongoing commitment to improving the many features of primary health care defines New Zealand’s internationally highly-regarded model. This commitment, they said, fundamentally contributes to greater individual and societal wellbeing. The Crown acknowledged, however, that the M¯aori health experience remains inequitable and, therefore, unacceptable. (Waitangi Tribunal 2019, pp. 10–11)

Though the Crown did also argue that inequities in themselves do not constitute a breach of the Treaty, it did nevertheless concede that there is an obligation to ‘attempt’ to address these inequities (Waitangi Tribunal 2019, p. 11). The Tribunal’s report is an important case study in the relevance, and potential relevance, of the Treaty to policy development. It shows that the Treaty does not ensure efficacious public policy, but that it does suggest alternatives to state-led policy making and insist that M¯aori may never be excluded from the policy process. It allows for consultation and co-design, but may be interpreted to insist that these should never supersede M¯aori leadership through substantive participation in state policy-making. These alternatives are presently discussed and may help introduce the concept of accountability to M¯aori into the policy process; an aspiration which may also be considered with reference to the principles of the Treaty, established by successive Tribunal and Court decisions, and introduced in Chapter 5.

7.4 Principles of the Treaty of Waitangi in Health Policy The Tribunal found that the following Treaty principles were relevant to this case: • • • •

the the the the

principle principle principle principle

of of of of

partnership; active protection; equity; and options (Waitangi Tribunal 2019, p. 27).

162

D. O’SULLIVAN

The principle of equity is concerned with outcomes consistent with those that the primary health system achieves for other citizens. The principle of options proposes that M¯aori should have choice in how and from whom health services are received. This principle is discussed in depth in Chapter 8 in relation to a case concerned with choice in schooling which was filed before the Tribunal in 2019. Active protection and partnership are closely related and stand in a complex philosophical and practical relationship with the right to selfdetermination. The Tribunal (2019) argues that citizenship means that people are under the Crown’s protection, and with reference to the importance of culture as a determinant of health, the Tribunal (2019) explained that ‘active protection’ includes ‘the incorporation and practice of tikanga M¯aori in mainstream health institutions’ (Waitangi Tribunal 2019, p. 31). Active protection does not imply privileged access to health services (Waitangi Tribunal 2019). Nor suggest that M¯aori are entitled to better quality care or to priority of access to public resources. What it does imply, is that M¯aori are entitled to care that is culturally meaningful, and as likely to be effective as the care that is provided to other citizens. In this sense, protection involves the state ensuring space for distinctiveness. In similar vein, the Tribunal proposes an obligation on the Crown ‘to protect actively M¯aori tino rangatiratanga’ (Waitangi Tribunal 2019, p. 30). Tino rangatiratanga is an inherent right that ought to be protected and upheld according to a principle of non-interference. It should not be encumbered by the Crown, but if it is made secure only by the Crown’s protection, the concept loses its inherent authority and the Crown is, again, positioned as senior partner in its relationship with M¯aori, which then limits the scope that is available for M¯aori to exercise independent authority over their own affairs. Partnership may be interpreted as a paternalistic obligation, not providing the conceptual certainty or consistency that self-determination requires. Partnership poses a similar risk, and curbing its intrusive potential is important. The Tribunal has previously described partnership as a form of mutual recognition, ‘the relationship where one party is not subordinate to the other but where each must respect the other’s status and authority in all walks of life’ (Waitangi Tribunal 1998, p. 27). While the presumption of non-subordination is not always reflected in common practice, processes for ensuring that it is so reflected are inherent to self-determination, which although difficult to achieve, requires significant transformation

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

163

in policy values and practices. Especially, as Strakosch (2019) argues, in Australia, policy is the state’s most effective and commonly used means of exerting dominant authority over Indigenous peoples. In practice, in New Zealand, partnership means the state consulting or perhaps inviting M¯aori into the policy development process. It does not ordinarily involve the state choosing to share the authority that it claims with M¯aori, to the point that it would step aside to allow M¯aori to develop and implement their own solutions to self-identified policy problems. In this example, the colonial state would surrender one of its most far-reaching hegemonic powers - the power to problematise the subordinate ‘other’. In this way the Crown would position itself to accept an earlier Tribunal recommendation that it should empower ‘M¯ aori to design and provide health services for M¯aori’ (Waitangi Tribunal 2011, p. xvi). However, the fact that Indigenous self-determination unavoidably requires recognition from the state means that partnership will always be unequal. The Crown will always be the senior partner and M¯aori will always be the junior. The Treaty principle of partnership is therefore limited. While it may still have positive potential in some respects, a more far-reaching discourse and political strategy with self-determination as the explicit purpose needs to be developed because partnership is not, ultimately, a philosophy of self-determination. If, for example, Crown leadership is the problem it is difficult to see how positioning it as the senior partner in a political relationship is the solution. For M¯aori, partnership may constrain accountability (O’Sullivan 2007). This is because partnership is the means through which the Crown recognises M¯aori entities, usually as subordinates or subjects of Crown sovereignty, rather than as legitimate shareholders in that sovereignty as both rangatira and citizens. Partnership means that accountability is ultimately to the P¯akeh¯a polity.

7.5 The Treaty of Waitangi and Health Policy: Beyond Partnership Towards Self-Determination One claimant to the Waitangi Tribunal health inquiry argued that changes to District Health Boards’ governance arrangements ought to be made to give M¯aori 50% of the representation on these Boards. The claimant argued that these members should be directly appointed by iwi and hapu

164

D. O’SULLIVAN

rather than being elected by all M¯aori citizens in the Board’s region (Waitangi Tribunal 2019). The argument here is one of universal M¯aori voice vis-à-vis mana whenua voice. Mana whenua reflects the view that it is iwi and hapu, in their specific localities, not M¯aori per se that are entitled to particular political status. The argument reflects the status of the Treaty of Waitangi as an instrument signed by hapu as distinct and independent political communities. M¯aori individuals belonging to hapu in the locality concerned would express their views according to processes determined by their hapu. M¯aori from other parts of New Zealand would have no claim to distinctive voice and must express themselves according to the arrangements used by any other citizen. Increasing M¯aori participation and ensuring that participants are from the area for which a Board is responsible is intended to bring significant change to its focus and priority setting. It would be significant because the Tribunal found that even though there is a statutory requirement for M¯aori to be present as Board members, they are always in a minority and usually appointees of the Minister of Health, rather than members elected by the citizens of the district. There is consequently no direct accountability to M¯aori people. Ministerial appointees serve at the pleasure of the Minister, not at the pleasure of M¯aori citizens. For the Tribunal, this means that there is no genuine partnership. It also means that there is no meaningful self-determination, no substantive capacity for M¯aori to ‘do justice’ to themselves. M¯aori capacity to ‘do justice’ to themselves would not, however, excuse the Crown of what the Tribunal calls its: ‘responsibility for the health and wellbeing of M¯aori [which] cannot be diluted’ (Waitangi Tribunal 2019, p. 31). The Crown must, therefore, ‘ensure its agents are performing well and, where they are not, the Crown must make a reasonable effort to improve performance’ (Waitangi Tribunal 2019, p. 32). However, the Tribunal found that the failure to ensure effective performance is just one constituent of a wider problem, which is that the New Zealand Public Health and Disability Act 2000 ‘does not give proper and full effect to the Treaty or its principles’ (Waitangi Tribunal 2019, p. 162). The Tribunal recommended that this omission be addressed by amending the Act to include a clause reading that: ‘This Act shall be interpreted and administered so as to give effect to the principles of the Treaty of Waitangi’ (Waitangi Tribunal 2019, p. 163). The Tribunal

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

165

recommended that in respect of the primary healthcare system the Treaty principles should be understood as: (a) The guarantee of tino rangatiratanga, which provides for M¯aori self-determination and mana motuhake in the design, delivery and monitoring of primary healthcare. (b) The principle of equity, which requires the Crown to commit to achieving equitable health outcomes for M¯aori. (c) The principle of active protection, which requires the Crown to act, to the fullest extent practicable, to achieve equitable health outcomes for M¯aori. This includes ensuring that it, its agents and its Treaty partner are well informed on the extent, in nature of, both M¯aori health outcomes and efforts to achieve M¯aori health equity. (d) The principle of options, which requires the Crown to provide for and probably resource kaupapapa M¯aori primary health services. Furthermore, the Crown is obliged to ensure that all primary healthcare services are provided in a culturally appropriate way that recognises and supports the expression of hauora M¯aori models of care. (e) The principle of partnership, which requires the Crown and M¯aori to work in partnership in the governance, design, delivery and monitoring of primary health services. M¯aori must be co-designers, with the Crown, of the primary health system for M¯aori (Waitangi Tribunal 2019, pp. 162–163). These principles provide no assumption of M¯aori leadership at any level of the policy process, even though elsewhere the Tribunal found that: the primary healthcare framework does not recognise and properly provide for the tino rangatiratanga and mana motuhake of hauora M¯aori. This is a breach of the Treaty’s active protection of tino rangatiratanga, as well as a breach of the principles of partnership, active protection, equity, and options. (Waitangi Tribunal 2019, p. 160)

To these ends, the Tribunal recommended that the Crown’s unequivocal commitment to equitable health outcomes for M¯aori be made explicit in all policy documents, plans and strategies (Waitangi Tribunal 2019), and that ‘the Crown acknowledge the overall failure of the legislative and

166

D. O’SULLIVAN

policy framework of the New Zealand primary health system to improve M¯aori health outcomes since the commencement of the New Zealand Health and Disability Act 2000’ (Waitangi Tribunal 2019, p. 170). The Tribunal (2019) found that the Crown failed to lead and direct the primary healthcare system in a way that adequately supported and resourced M¯aori to design and provide for their own well-being through designing and delivering primary healthcare to M¯aori. The Crown’s failures prejudicially affect the ability of M¯aori to sustain their health and well-being. (p. 161)

The consequent prejudice is ‘extensive’ (Waitangi Tribunal 2019, p. 161), and many of the Crown’s intended measures were ineffective or simply not implemented. The Crown’s failures are, in the Tribunal’s words, ‘very serious’ (Waitangi Tribunal 2019, p. 161). The Tribunal partly attributed the health differential for M¯aori to well-established social determinants of health, for example income and poverty, unemployment, poor education and housing. However, the more insidious implication of the Tribunal’s report is that racism, as a political determinant of health, is also significant. Income and poverty, unemployment, poor education and housing are not entirely the product of bad luck, but the product also of considered public policy decisions. There is, as the M¯aori epidemiologist Paparangi Reid told the Tribunal, ‘a health legacy from previous Treaty breaches’ (Waitangi Tribunal 2019, p. 20). For example, the alienation of land, the discriminatory provision of public education and suppression of the M¯aori culture. Overall, the Tribunal found ‘four main thematic issues’ as the basis for a primary healthcare framework which would be effective for M¯aori, and consistent with the Treaty. These were, ‘broadly: the Treaty-compliance of the Act and framework for primary health care; funding arrangements for primary health care; accountability arrangements for primary health care; and the nature of the Treaty partnership arrangements in the primary healthcare sector’ (Waitangi Tribunal 2019, p. 16). The essential characteristic that allows policy failure to prevail in New Zealand is that while there are important institutional means of policy accountability to M¯aori, they are not sufficient. This is because M¯aori political authority is not as widely dispersed through the policy system as substantive accountability requires. The M¯aori presence is not sufficiently strong and dispersed to ensure that policy success and failure is defined by

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

167

M¯aori, measured by M¯aori, and robustly defended by M¯aori officeholders to M¯aori people. The District M¯aori Councils told the Tribunal that the only solution consistent with the Treaty was the establishment and Crown funding of a health system designed, operated, governed, controlled and administered by M¯aori (Waitangi Tribunal 2019). For this objective to be advanced, one needs also to propose a clear administrative and funding structure. This could be supported, in the first instance, by the Tribunal’s recommendation that the Crown and claimants establish a methodology for assessing the underfunding of M¯aori health needs and for establishing equitable and effective funding levels (Waitangi Tribunal 2019). The broader and permanent systemic reform that the District M¯aori Councils propose is the establishment of an independent M¯aori Health Authority which this chapter presently discusses as a way of shifting the health system’s underlying presumption away from partnership and towards self-determination. The Tribunal’s report showed the importance of more widespread measures to ensure transparency and accountability to M¯aori citizens. Te Puni Kokiri, the Ministry of M¯aori Development, has a statutory obligation to promote improved policy outcomes for M¯aori. It is also required to monitor the performance of other public sector agencies on their work with M¯aori people. The Tribunal found that in this respect Te Puni Kokiri’s work has been inadequate and ineffective (Waitangi Tribunal 2019). In 2019 the Minister of M¯aori Development said that she had asked Te Puni Kokiri to enhance its organisational capacity in this respect (Waitangi Tribunal 2019), which is important but insufficient. Strengthening Indigenous participation at all levels of the policy process, not just parliament and the executive, is for example, important, and not just in the domain of primary health care. In child welfare policy, for example, the underlying failure from many M¯aori perspectives is caused by the state agency Oranga Tamariki’s inability to admit M¯aori conceptions of the role of wider families, not just parents, in the care of children. The importance of whanau [family] and whakapapa [genealogy] to child well-being does not influence Oranga Tamariki’s social work practices in the ways that a M¯aori right to engage with the state as M¯aori, and as distinctively M¯aori citizens, might suggest. This point came to particular public attention in 2019 when the independent publisher Newsroom arranged the filming of an Oranga Tamariki interaction with the family of a newborn child it claimed was at risk and for whom it had a Family Court warrant to remove

168

D. O’SULLIVAN

(Newsroom 2019). The evidence that the child was at risk was limited, and care arrangements for he and his teenage parents had been made by his grandparents and midwife. The warrant was issued without a substantive court hearing (Newsroom 2019). For M¯aori families, this was not an unfamiliar story, and the incident occurred at the same time as a Royal Commission of Inquiry into the abuse of children in state care was in progress (Abuse in Care, Royal Commission of Inquiry 2020). Between 2015 and 2018 the number of state removals of M¯aori babies increased by 33% (Newsroom 2019). In 2018, 102 M¯aori babies were removed per 10,000 births. For the rest of the New Zealand population, the number was 24 per 10,000 births (Newsroom 2019). In this case, in 2019, the family’s care arrangements did ultimately prevail after the intervention of the police and the child’s iwi Ngati Kahungunu. However, there is a wider policy concern brought about by sustained state failure to make safe arrangements for children in its care, disregard for M¯aori decision-making arrangements and inattention to culture as a determinant of care. There is also a sustained disregard for the UN Declaration on the Rights of Indigenous Peoples (2007) and its principles for the care of Indigenous children. Indigenous peoples have the collective right to live in freedom, peace and security as distinct peoples and shall not be subjected to any act of genocide or any other act of violence, including forcibly removing children of the group to another group. (Article, 7)

Just as it is in Australia and Canada, the New Zealand Chief District Court Judge has noted that it is well-established, internationally, that placing children in state care significantly increases their likelihood of criminal offending in later life (Radio New Zealand 2018). The capacity of iwi and other M¯aori agencies to intervene when children are not properly cared for is an important expression of the right to self-determination. Furthermore, and as the Indigenous Australian lobby group Grandmothers Against Removals put it: ‘States have a responsibility to actively undo the harm they have perpetrated and continue to perpetrate’, and with reference to the Rudd Government’s (2007–2010) apology to the stolen generations, ‘sorry means you don’t do it again’ (Grandmothers Against Removals, cited in O’Sullivan 2019). The care and protection of children at risk is complex, and the cultural dissonance between state practice and the children to whom it owes

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

169

care, contributes to its ineffectiveness. Eliminating that dissonance is an essential and reasonable policy objective, though it is achievable only with expert M¯aori leadership in the process of policy development and implementation. It is only through indigenising the bureaucracy, and by ensuring that there is also space for M¯aori institutions in the care and protection of children, that Oranga Tamariki might bring observable and quantifiable meaning to the realisation of its own stated values: We respect the mana [status, power] of people. We listen, we don’t assume, and we create solutions with others. We value whakapapa [ancestry and family relationships] – tamariki [children] are part of a whanau [family] and a community. (Oranga Tamariki, cited in O’Sullivan 2019)

In response, it may be that senior level M¯aori participation in the bureaucracy is an ideal that would, in this case in particular, justify the appointment of a senior M¯aori social worker as Chief Executive. Ministers set the policy framework, but it is Chief Executives who arrange for its implementation. Given that most of the children and young people who come to Oranga Tamariki’s attention are M¯aori and given that M¯aori are the group with whom the agency works least effectively, the argument for a M¯aori Chief Executive is not one of affirmative action for an individual’s career advancement but one of what is most likely to contribute to good government. Notwithstanding the measures that may be taken to improve government effectiveness, persistent M¯aori complaints against state entities like Oranga Tamariki also suggest scope for an independent M¯aori Ombudsman empowered to consider the claims of culture, citizenship and rangatiratanga in M¯aori engagements with the state.

7.6 Bureaucratic Accountability for Policy Success It is important that ministers expect oversight of bureaucratic effectiveness so that they are able to demonstrate responsibility to the people through parliament. However, for Indigenous peoples, questions of public accountability are more complex and not given effect only through ministerial accountability to parliament. There is an argument for the transparent accountability of public agencies to Indigenous publics as

170

D. O’SULLIVAN

distinct political communities. M¯aori ministers and members of parliament provide this conduit to the M¯aori population in some respects. However, they are still minority voices in a parliament and executive where others’ interests and priorities are always likely to command relative priority. Accountability to ministers, who may be M¯aori, who are responsible to parliament with its more than proportionate M¯aori membership is important. M¯aori electorate members of Parliament are, in turn, directly accountable to M¯aori voters. This kind of accountability and responsibility reflects differentiated citizenship’s attention to M¯aori capacities within the state. However, it is only one part of a two-tiered expression of authority. Accountability to M¯aori citizens through their own political structures is also important, but it is not well developed. And, perhaps, not well considered precisely because the Treaty of Waitangi’s partnership principle reinforces Crown policy leadership as prior to M¯aori policy leadership. It may, for example, be just for the Crown to fund exploratory work on the establishment of a M¯aori Health Authority. However, such an arrangement does reinforce M¯aori dependence and once again position M¯aori as the junior partner. Similarly, the recommendation that M¯aori and the Crown co-design a M¯aori health research plan also diminishes scope for M¯aori leadership. Indeed, as well as commissioning health services, the capacity to commission research based on informed M¯aori views of where new research would be useful would provide further scope for rangatiratanga within the state bureaucracy. Decision-making based on reliable and tested information is a prerequisite for effective policy leadership. Ensuring that M¯aori are able to commission that new knowledge is important. A further process for mitigating against dependence on the Crown is for M¯aori entities to carry out the work themselves and use the political process, including the Tribunal’s insistence that it be kept informed of progress, to influence the Crown towards acceptance of an independent M¯aori position. A M¯aori purchasing authority would allow M¯aori owned entities to develop and thus, in time, eliminate a dependent relationship with the Crown. Independence would, in time, trump junior partnership. M¯aori entities seeking contestable funding from a M¯aori funding agency for the provision of public services is a process that could substantively transform the ways in which public policy works. Such arrangements could also substantively transform policy rationale so that policy is no longer a site where self-determination is pursued by Indigenous peoples in

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

171

conflict with state assertions of colonial hegemony. M¯aori expectations of public policy could be expressed in epistemological terms that make sense to the M¯aori provider, in the knowledge that proposals will be assessed and compared through a cultural lens, and against criteria that reflect principles of self-determination. However, in controlling the primary health system’s design, structure and resourcing, the Crown took for granted the role of senior partner.

7.7

Beyond Partnership to Independence

This independent Health Authority that the M¯aori Primary Health Organisations and Providers proposed to the Tribunal is similar to the health administration model used to support Indigenous health in Alaska (the NUKA model). The Tribunal recommended that the Crown fund the further exploration of this model (Waitangi Tribunal 2019). Indeed, partnership’s hegemonic character, as one of the reasons for policy failure, explains why some claimants found the Alaskan model attractive. Native Alaskan people are the ‘customer owners’ of the Nuka System of Care in Anchorage. The System’s rationale is ‘improving health through ownership and relationships’ (Gottlieb 2013, p. 1). The System was established by the Cook Inlet Region Inc. Tribal Authority which was itself established under the federal Alaska Claims Settlement Act 1971. The System’s distinctive characteristic is that it is Indigenous managed and owned ‘to achieve physical, mental, emotional and spiritual wellness’ (Gottlieb 2013, p. 1). It is not a relationship between partners. There are no obvious philosophical obstacles to iwi and other M¯aori entities adopting similar models of service provision. The obstacles are scale and financial sustainability. The System serves approximately 60,000 Native Alaskan and American Indian people. This gives it a population base to achieve economies of scale not possible with New Zealand’s many small M¯aori primary health providers. It is a provider not a funder of health care. Its success seems attributable to its ownership structure, a relatively greater independence from the state than M¯aori providers enjoy, and philosophies of health and well-being that reflect the expectations of its customer owners. While the System receives significant state funding, it is not entirely dependent on public money as it receives philanthropic grants, and its relationships with universities, diminish its dependence on the public health bureaucracy (Southcentral Foundation 2015).

172

D. O’SULLIVAN

Gottlieb (2013) describes the key points of the System’s Vision and Mission Statements. Their philosophical presumptions are consistent with stated M¯aori expectations of a health system, and include: Shared Responsibility We value working together with the individual, the family, and the community. We strive to honor the dignity of every individual. We see the journey to wellness being traveled in shared responsibility and partnership with those for whom we provide services. Commitment to Quality We strive to provide the best services for the Native community. We employ fully qualified staff in all positions and we commit ourselves to recruiting and training Native staff to meet this need. We structure our organization to optimize the skills and contributions of our staff. Family Wellness We value the family as the heart of the Native Community. We work to promote wellness that goes beyond absence of illness and prevention of disease. We encourage physical, mental, social, spiritual & economic wellness on the individual, the family, the community in the world in which we live. (p. 2)

The Nuka System of Care is not, however, a funder of health services in the way that a M¯aori Health Authority is envisaged. It is a provider that replaced a healthcare model where Indigenous people were ‘beneficiaries’ of a native public hospital. The difficulty for M¯aori is that true independence requires financial independence from the state. Yet, state funding is a reasonable expectation of citizenship. The NUKA System of Care’s integrated and holistic approach to health and well-being could have been supported in Australia through the establishment of an independent Indigenous Health Purchasing Authority of the kind proposed to the first Rudd Government (2007–2010) in 2009 by its National Health and Hospitals Reform Commission (National Health and Hospitals Reform Commission 2009). The proposal was not accepted, though its potential was to contribute not just to closing the gap in health outcomes, but to closing the gap in political disadvantage, making it an instructive point of comparison to inform the development of a M¯aori Health Authority in New Zealand. The proposal confronted the traditional practice of states making policy for, and over and above,

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

173

Indigenous people. It was intended to allow Indigenous leadership and decision-making about how and why public money is distributed and how its efficacy is evaluated. The Authority would, ideally, have comprised Indigenous people of proven expertise empowered to make decisions about the kinds of health services to be purchased and from which health service provider. As an Indigenous agency, the Authority would provide for bureaucratic accountability to Indigenous people, narrow the cultural gap between people and decision-makers and if successful, become a model for the purchase of public services in other policy domains (O’Sullivan 2015). The Authority would also provide bureaucratic support for the UN Declaration on the Rights of Indigenous Peoples’ affirmation that: Indigenous peoples have the right to determine and develop priorities and strategies for exercising their right to development. In particular, Indigenous peoples have the right to be actively involved in developing and determining health, housing and other economic and social programmes affecting them and, as far as possible, to administer such programmes through their own institutions. (UN 2007, Article 23)

A M¯aori Health Purchasing Authority would not be the state’s partner, nor the object of state consultation. Its decisions would be those of expert M¯aori policy actors and an example of what Maaka and Fleras (2009) call indigenising policy-making by mainstreaming indigeneity. Achieving accountability to themselves has also become an important theme for the Tuhoe iwi after settling its Treaty claim in 2014. The settlement gave Tuhoe a foundation for thinking about how rangatiratanga and kawanatanga may overlap as plural spheres of political authority. From this perspective, the iwi is negotiating a distinctive reclamation of its own sovereignty vis-à-vis the Crown’s. It wishes to assume responsibility for housing, schools, health care and welfare benefits in its tribal area. Its intent is to ‘design a system where there is a transition from benefits to wages and salaries’ (Kruger in Moore et al. 2014), which is significant because in 2014 29% of the Tuhoe population received a state welfare benefit and the life time cost was $78.1 billion. 4000 of these people were 16 and 17-year-olds for whom the lifetime cost to the state is $1 billion (Moore et al. 2014). The Tuhoe aspiration is to ‘become independent of the Government, generate its own revenue and become self-sustaining’

174

D. O’SULLIVAN

(Moore, et al. 2014, p. v). The Crown accepted these general aspirations as a mark of mutual recognition. A Government commissioned report argued that Tuhoe ‘could get better results… because of the knowledge, proximity and influence with the potential beneficiaries’ (Moore et al. 2014, p. 33). The report continued to explain that: ‘Tuhoe consider youth parenting and unemployment as an area where they could improve social outcomes for both current and future generations - a concept entirely consistent with mana motuhake’ [self-determination] (Moore et al. 2014, p. 10). The intent is to support ‘changing a mindset in Tuhoe around being beneficiaries of the state’ (Kruger, in Moore et al. 2014, p. 42) through a dramatic re-configuration of the relationship between the two so that state power is constrained by negotiation, the obligation to act in ‘good faith’, judicial intervention and M¯aori recourse to the moral persuasiveness found in international norms of justice, such as the United Nations’ Declaration on the Rights of Indigenous Peoples which, in respect of economic development for example, maintains that: Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. (UN 2007, art. 3)

In order to pursue these aspirations, the Crown and Tuhoe formally acknowledged the other’s mana [standing] (Moore et al. 2014) as a mark of mutual recognition. Conditioned, however, by the Crown’s claim that the Treaty was a cession of sovereignty (Independent Working Group on Constitutional Transformation 2016, p. 18), to which Tuhoe chose not to respond, except through policy proposals that obviously asserted its independence. The Tuhoe position still showed the breadth of sovereign possibility within the liberal state. The Crown’s willingness to consider the Tuhoe proposal, in fact, affirms sovereignty’s relative and relational character and its potential for evolution in character, form and distribution. The negotiations are a practical response to the argument that sovereignty was not ceded. They show ‘the paradox of sovereignty [producing] sites of contestation that allow political actors to challenge unjust legal exclusions and produce new political possibilities’ (Dahl 2016, p. 2). Tuhoe provides an example of the broad scope that exists for working out what counts as restitutive justice, and what constitutes the conditions that Indigenous peoples say are necessary for them to do justice to

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

175

themselves. To live lives that, in the broadest sense, they have reason to value.

7.8

Conclusion

Indigenous leadership in the framing of public policy objectives and processes to ensure accountability to Indigenous citizens are important constituents of Indigenous participation. They are important criterion in establishing equal capacity for influence over how decisions are made, by whom and why. These deliberative capacities occur through public institutions that are not culturally neutral or objective. Public institutions are formed and operated by people whose work is necessarily influenced by their own aspirations and culturally framed understandings of what is good and what is to be avoided. Culture’s centrality to decision-making means that participation is preliminary to outcomes that reflect the values and expectations of different groups of people. If others make these decisions for Indigenous people there is a fundamental inequality being upheld. Indigenous exclusion is an example of mis-recognition. However, as this chapter has shown, liberal political theory does not require liberal societies to work in this way. The Treaty of Waitangi provides a framework for analysing the distribution of power within policy systems, as well as providing overarching themes that can be used to consider different arrangements. The chapter has shown how the incremental steps towards more inclusive policy-making that have been taken in Australia in recent years, may be developed, with reference to examples from Australia and Canada. The underlying presumption is that beyond consultation there is an Indigenous right to lead and for that leadership to be accountable to Indigenous citizens. This presumption lays the foundation for the next chapter to consider further possibilities, and further obstacles, for Indigenous influence in policy-making. It makes these considerations to establish equal capacities for influence as a mark of human equality, and as an essential consequence of mutual recognition. In particular, the state’s recognition of the Indigenous right to be present wherever political and policy decisions are made, and to be present when policy makers account to the citizenry.

176

D. O’SULLIVAN

References Abuse in Care, Royal Commission of Inquiry. (2020). Abuse in care. https:// www.abuseincare.org.nz/. Accessed 12 July 2020. Australian Institute of Health and Welfare. (2016). Healthy futures—Aboriginal Community Controlled Health Services Report Card 2016. https://www.aihw. gov.au/reports/Indigenous-health-welfare-services/healthy-futures-aborig inal-community-controlled-health-services-report-card-2016/contents/tableof-contents. Accessed 12 July 2020. Australian Medical Association. (2016). Aboriginal and Torres Strait Islander health report card. www.ama.com.au/article/2016-ama-report-card-Indige nous-health-call-action-prevent-new-cases-rheumatic-heart-disease. Accessed 1 October 2017. Chambers, C. (2003). Nation-building, neutrality and ethnocultural justice: Kymlicka’s Liberal Pluralism. Ethnicities, 3(3), 295–319. Dahl, A. (2016). Nullifying settler democracy: William Apess and the paradox of settler sovereignty. Polity, 48(2), 279–304. Freeman, T., Baum, F., Mackean, T., Ziersch, A., Sherwood, J., Edwards, T., et al. (2019). Case study of a decolonising Aboriginal community controlled comprehensive primary health care response to alcohol-related harm. Australian and New Zealand Journal of Public Health, 43(6), 532–537. Gottlieb, K. (2013). The Nuka System of Care: Improving health through ownership and relationships. International Journal of Circumpolar Health, 72(1), 1–6. Hindess, B. (2002). Neo-liberal citizenship. Citizenship Studies, 6(2), 127–143. Indigenous Implementation Board. (2011). Report to the Hon. Peter Collier MLC Minister for Indigenous Affairs. https://parliament.wa.gov.au/public ations/tabledpapers.nsf/displaypaper/3813382ce4129e666784fca8482578 b70010bd6a/$file/3382-21.06.11.pdf. Accessed 12 July 2020. Independent Working Group on Constitutional Transformation. (2016). Matike mai o Aotearoa. www.converge.org.nz/pma/iwi.htm. Accessed 12 July 2020. Lipsky, M. (1980). Street-level bureaucracy: The critical role of street-level bureaucrats. New York: Russell Sage Foundation. Maaka, R., & Fleras, A. (2009). Indigenizing policymaking by mainstreaming indigenity: Towards an Indigenous Grounded Analysis (IGA) Policy Framework as participatory governance. Victoria University of Wellington, Moore, D., Scott, G., Drew, R., Smith, J. & Whelen, C. (2014). Decentralising welfare—te manamotuhake o tuhoe (Report to the Ministry of Social Development). Wellington, New Zealand: Sapere Research Group. www.srgexpert.com/wp-content/uploads/2015/11/Decentralisingwelfare-te-mana-motuhake-o-tuhoe.pdf. Accessed 20 July 2020.

7

BEYOND CONSULTATION: PARTICIPATION AS INFLUENCE

177

National Aboriginal Community Controlled Health Organisation. (2020). About NACCHO. https://www.naccho.org.au/about/. Accessed 13 July 2020. National Health and Hospitals Reform Commission. (2009). A Healthier Future for all Australians—Final report. Newsroom. (2019). NZ’s own ‘taken generation’. https://www.newsroom. co.nz/investigations/2019/06/11/629363/nzs-own-taken-generation. Accessed 12 July 2020. New Zealand Government. (2000). New Zealand Public Health and Disability Act 2000. http://www.legislation.govt.nz/act/public/2000/0091/latest/ DLM80051.html. Accessed 12 July 2020. O’Sullivan, D. (2007). Beyond biculturalism. Wellington: Huia Publishers. O’Sullivan, D. (2015). Indigenous health: power, politics and citizenship. Melbourne: Australian Scholarly Publishing. O’Sullivan, D. (2019). Racism alleged as Indigenous children taken from families—Even though state care often fails them. The Conversation. https:// theconversation.com/racism-alleged-as-Indigenous-children-taken-from-fam ilies-even-though-state-care-often-fails-them-116984. Accessed 12 July 2020. Radio New Zealand. (2018). ‘State care can have disastrous implications’—Chief district court judge. https://www.rnz.co.nz/news/national/368718/statecare-can-have-disastrous-implications-chief-district-court-judge. Accessed 12 July 2020. Southcentral Foundation. (2015). FY2015 Progress Report. http://www.sou thcentralfoundation.com/wp-content/uploads/2017/01/Progress-Report_ 2016.pdf. Accessed 12 July 2020. Strakosch, E. (2019). The technical is political: settler colonialism and the Australian Indigenous policy system. Australian Journal of Political Science, 54(1), 114–130. United Nations. (2007). Declaration on the rights of Indigenous peoples. New York: United Nations. Waitangi Tribunal. (1998). Te Whanau o Waipareira Report. Wellington: GP Publications. Waitangi Tribunal. (2019). Hauora: Report on stage one of the health services and outcomes Kaupapa inquiry. https://forms.justice.govt.nz/search/Docume nts/WT/wt_DOC_152801817/Hauora%20W.pdf. Accessed 12 July 2020. Waitangi Tribunal. (2011). The Napier Hospital and Health Services Report. https://forms.justice.govt.nz/search/Documents/WT/wt_DOC_685 96252/Wai692.pdf. Accessed 12 July 2020.

CHAPTER 8

Power and Presence: Indigenising Public Decision-Making

8.1

Introduction

Beyond consultation and partnership, and even beyond the Voice, there is a politics of power and presence to be considered wherever policy decisions are made, refined and implemented. This is because the substance of public sovereignty is not found in one place. It is in neither the parliament, the executive or judicial branches of government alone. Nor is it solely in the public bureaucracy or the school or hospital as sites of policy implementation. Sovereignty is exercised and decisions made, with the authority of the state, in each of these places. Each is a site of power, and also a site of considerable contest. This chapter considers power relationships within the bureaucracy and Blackstock’s (2011) moral courage as an example of how power imbalances are contested in public agencies, though it does of course note that courage requires presence. One New Zealand example, under the Waitangi Tribunal’s consideration, is the nature of M¯aori presence in the matter of M¯aori schooling. The contest is over how and by whom decisions are made about the provision of schooling for M¯aori citizens. The claim put to the Tribunal by M¯aori education professionals concerns the extent to which there ought to be choice, and the extent to which there should be M¯aori leadership in making decisions about the purposes schools are expected to serve. Schools are potentially important sites of transformation and © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 D. O’Sullivan, Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State, https://doi.org/10.1007/978-981-33-4172-2_8

179

180

D. O’SULLIVAN

self-determination, but they are also sites where Indigenous agency is commonly curtailed. Sites of misrecognition. The claim discussed in this chapter is a claim to the exercise of rangatiratanga in decision-making, but also an example of the claim to participate in public institutions as M¯aori. From this context, the contrast is drawn with Indigenous positioning as policy subjects on the periphery of decision-making processes. It makes this contrast with reference to Strakosch’s (2019) Australian arguments about the policy process as a site of colonial encounter; a site of potentially profound misrecognition.

8.2

Democratic Inclusion Beyond the Voice

State sovereignty is widely dispersed which means that, in Australia, self-determination cannot occur through the Voice alone. Nor through guaranteed seats in parliament, or proportional membership of the executive. A coherent and pragmatically useful account of political power means that Indigenous voices and aspirations need to be present wherever decisions are made. Such an account of political power must be able to describe and justify which kinds of decisions are the domain of the Indigenous nation, and which are the domain of Indigenous persons, in common with other citizens, as shareholders in the national sovereign. These domains of political power overlap and are distinguished by the diversity of thought and aspiration that it is liberal democracy’s task to mediate; to respond to there never being a single voice uninfluenced by nation, language, class, gender, age, education, occupation, or place of residence. ‘If we had a way of having our voices heard, policies would improve, duplication and waste would be reduced and policies might be more effective. A voice for our First Nations… gives force to better engagement with Indigenous people’ (Oxfam Australia 2018, p. 2). But as Ian Anderson, deputy Secretary of the Department of the Prime Minister and Cabinet put it: ‘it is not really sufficient to just look outwards, you need to look inwards and redevelop the capability within government. Government systems need to change’ (Anderson 2018, p. 17). It is from this broader description of where political authority lies that one might usefully respond to Hobbs’ (2018) argument that Australia’s failure to protect ‘Indigenous peoples from majority rule’ is a ‘breach of democratic values’ (p. 310). Minority status, and the absence of recognised nationhood, makes moral persuasiveness and occasionally

8

POWER AND PRESENCE: INDIGENISING PUBLIC DECISION-MAKING

181

legal proceedings, the only means through which Indigenous people can hold governments democratically accountable. However, if one thinks of meaningful Indigenous voice as a positive liberal right of indigeneity, rather than contemplating only the democratic system’s duty to protect minorities, one may think about democracy’s potential contribution to the expression of a wide body of Indigenous political capacities, including the capacity to function within the public bureaucracy as Indigenous and to function as part of the public to which bureaucratic accountability is owed. Public policy decisions are not democratic if those most affected have not had meaningful opportunities to lead in their development, and meaningful opportunity to accept, reject or modify their content. Public accountability is ordinarily secured through bureaucratic accountability to a minister and through the minister to parliament which is, in turn, accountable to the public. This model of liberal democratic accountability is supported when Indigenous people have a significant presence in parliament and the executive, but changing the ways in which liberal democracies function to exclude Indigenous peoples requires abandoning wider assumptions of a ‘unitary demos’ (Hobbs 2018, p. 324). There is, instead, scope for the: ‘Recognition of plural wills’ (Hobbs 2018, p. 324) to construct a politics of liberal inclusion reflecting the political community, including public bureaucracies, as one of ‘multiple peoples’ all of which are entitled to empowerment according to ‘democratic values’ (p. 308). Among the intended outcomes would be increased Indigenous trust of the state, based on Indigenous people having reason to accept that the bureaucracy is Indigenous as much as it is anything else. This is an important aspiration because ‘trust gaps’ (Craik et al. 2017, p. 387) with governments summarise the political problem inhibiting meaningful selfdetermination across the Indigenous world. Schools, hospitals and welfare agencies have been used to undermine Indigenous societies. Undermining continues to interfere with the development of Indigenous respect for the state and confidence in the honour of its intentions. In Australia, these public agencies’ violent and considered contributions to the destruction of Indigenous families naturally accounts for ongoing suspicion. It makes relationships with government a key site of contest over the right to self-determination. It also makes these relationships sites of contest over what it means to live as an Indigenous citizen, and what it means

182

D. O’SULLIVAN

for the United Nations’ Special Rapporteur on the Rights of Indigenous Peoples to observe that ‘Aboriginal peoples’ concerns [should] merit higher priority at all levels and within all branches of government (United Nations 2014, p. 20). It is in these contexts that trust is an essential precursor to legitimacy. Creating reasons for trust is essential to contemporary aspirations for makarrata, treaties, and a Voice to parliament. However, Watson and Venne (2012) argue that, in Australia, official policies of selfdetermination have fallen short in giving the concept true expression, meaning that reasons for trust remain elusive. For example, while government interest in addressing disadvantage has strengthened since the Howard Government’s defeat in 2007, it remains that in 2017 Australia’s report to the United Nations’ Permanent Forum on Indigenous Issues could cite only three instances of contemporary success • Child mortality rates are declining • Secondary education rates are steadily increasing • Reducing mortality from chronic diseases (United Nations 2017, p. 2). Australia’s concern is for material but not political disadvantage. The final form and success of the aspiration to amend the Constitution to recognise Australia’s first peoples will test the national interest in ameliorating political disadvantage. It will test support for the proposition that democratic institutions ought to hold Indigenous people’s confidence and that it must be apparent to Indigenous people that their values have the capacity to influence; that they are citizens in a substantive way. Politics is a process for dealing with conflict. It establishes the rules and institutions through which conflict is mediated. However, Indigenous experience of public bureaucracies is that they are an essential and powerful component of the colonial state. They are unlikely to be ideologically neutral. Colonialism creates certain kinds of public institutions to allow its exploitative logic to prevail. In Australia, the public health and welfare systems were integral to the implementation of the stolen generations’ policies, for example. Education’s contemporary transformational purpose is encumbered by the legacy of the limits it was once intended that it should place on Indigenous aspiration (Neville 1947). The same is true in New Zealand where the original Department of Native Affairs was

8

POWER AND PRESENCE: INDIGENISING PUBLIC DECISION-MAKING

183

established to accelerate the alienation of M¯aori land (Hill 2004, p. 182). In Canada, contemporary First Nations’ policy advocacy has a particular focus on the impact of child welfare policies on culture and individual well-being. In spite of the recommendations of the Truth and Reconciliation Commission (2015) to ensure culture’s centrality to child welfare and in spite of measures to implement the UN Declaration, such as laws passed in British Colombia, Canada is yet to show that its bureaucracies function according to the Declaration’s intent. A set of complex and contested philosophical considerations must be worked out within the bureaucracy, and as Blackstock (2011) argues, the professional street level bureaucrat’s (Lipsky 1980) moral courage is among the determinants of a bureaucracy that people have reason to trust.

8.3 Making Bureaucracies Work: Moral Courage and the Street Level Bureaucrat Street level bureaucrats’ professional discretion challenges conventional understandings of democratic engagement. Indeed, the use of such discretion to advance conceptions of justice that are inconsistent with official government policy may be profoundly undemocratic. The bureaucrat is not personally accountable to the political community for his or her actions. There is no mechanism for the bureaucrat to announce what he or she proposes to do and seek a public mandate. Racism’s influence on professional practice is well-documented, as the nurse chooses to prioritise the care of some patients over others, or as the teacher chooses to pay less attention to some children’s learning vis-a-vis others (O’Sullivan 2015). On the other hand, there is what Blackstock (2011) calls moral courage and there is accountability to conscience and professional codes of ethics. For Indigenous street-level-bureaucrats, there may also be accountability to one’s own people, which is especially important when culture is a determinant of what people expect public policy to achieve. Contemporary policy expectations are also conditioned by people’s experiences of past policy intent and past policy failure. Relationships among conscience, discretion and democratic practice are complex and may expose a democratic limit on bureaucratic contributions to Indigenous self-determination. Street level bureaucrats routinely have opportunities to display moral courage, although it may be conceptually and professionally difficult. Moral courage is also compromised

184

D. O’SULLIVAN

by confused and conflicting accountabilities as the professional considers his or her ability to stand up for the ‘right thing’. Specifically, to do the ‘right thing when some negative repercussion for the right-doer is anticipated’ (p. 36). But there is, Blackstock (2011) argues, considerable scope for what she calls the moral courage to use bureaucratic discretion in Indigenous people’s favour. In her example of child welfare policy, moral courage means that professional practice should not promote ‘conformity’ and reward ‘subordination to bad ideas’ (p. 35). She contrasts moral courage with moral cowardice where ‘moral cowardice diminishes children and… moral courage uplifts them’ (p. 36). Blackstock (2011) cites numerous studies suggesting that the overrepresentation of First Nations’ children in state care is avoidable. She shows that there are well-known policy interventions that are likely to succeed. There is, for example, extensive evidence that ‘culturally based services targeted at poverty, poor housing and substance misuse would reduce the over-representation of First Nations’ children in child welfare’ (2011, p. 35). Therefore, she argues, that it is a breakdown in the workings of liberal democracy that prevents proper attention to a serious though solvable policy problem. Moral courage, she argues, makes a potentially important contribution to the search for solutions. Moral courage is not restricted to ‘whistle blowing’ to counter overt and illegal discrimination. It is more far-reaching and subtle, requiring a considered appreciation of how one’s moral and political values influence one’s professional practice. The ‘right thing’ is neither objective nor always immediately obvious. Doing the ‘right thing’ is not a matter of professional skill alone. It is also a matter of political choice, in bureaucracies that ‘are, by nature, structured for conformity not innovation’ (Blackstock 2011, p. 37). Moral courage is not just an individual imperative. It may mean reforming bureaucratic systems. It may be more far-reaching than the street level professional bureaucrat breaking the rules and hoping that no one ‘finds out’ (Blackstock 2011, p. 37). Research on the incidence of child protection policy rule breaking and the factors contributing to it should be investigated - not as an enforcement measure but rather to make alive the innovations workers are doing to improve the lives of children and families despite the system. (Blackstock 2011, p. 37)

8

POWER AND PRESENCE: INDIGENISING PUBLIC DECISION-MAKING

185

Moral courage is reflected in professional codes of ethics which are open to public scrutiny and may, as in the case of the Australian Nursing and Midwifery Board’s Code, be subject to public objection precisely because they take an overt moral stand against racial discrimination (O’Sullivan 2018). This Code was, for example, publicly ridiculed by news media falsely claiming that it requires white professionals to ‘acknowledge their white privilege’ before they could treat an Indigenous patient, even if the delay meant putting the patient’s life at risk (O’Sullivan 2018). The allegation was made to deride an argument in favour of fundamental human equality (O’Sullivan 2018). The revised Code, published in 2018, is explicit in admitting that discriminatory values detract from the quality of professional care that nurses and midwives may provide. The Code requires nurses and midwives to practice in ‘culturally safe and respectful’ fashion which means knowing how one’s ‘own culture, values, attitudes, assumptions and beliefs influence… interactions with people and families, the community and colleagues’ (O’Sullivan 2018, para. 2). There is a professionally sanctioned obligation to avoid ‘bias, discrimination and racism’ in one’s practice (O’Sullivan 2018, para. 2). The Code is arguably ‘giving public voice to morally courageous stances [which] often makes them more real, irrevocable and risky’ (Blackstock, p. 36). The question of just how risky, depends on the accepted role of the street level bureaucrat as a professional worker, but also the workers’ role as democratic deliberator. As citizens, bureaucrats are legitimately deliberators. However, at the street level, their discretion occurs because they are professional. The legislature cannot fully prescribe the ways in which their work should be done. Perhaps, there is an added moral dimension when one knows that one’s work can be done better; when there is evidence and a professional moral code to suggest that doing better is possible and reasonable (Blackstock 2011). Moral courage does not mean ‘standing up’ lightly. It must be professionally considered and informed by authoritative evidence. But, perhaps also by moral values. For example, Blackstock (2011) argues that Kidder’s (2003) five universal values, which form the basis of moral courage and which are reflected in the Canadian Association of Social Workers’ Code of Ethics, are consistent with First Nations’ values— honesty, respect, responsibility, fairness and compassion. In Australia, the National Health and Medical Research Council (2016) has acknowledged that the cultural determinants of health are important and might include

186

D. O’SULLIVAN

language, relationships and identity, place, traditional knowledge, family, culture and kinship. These values are well placed to counter mistrust. While in 2013, Australia did seriously engage with Indigenous peoples over its health policy statement, the National Aboriginal and Torres Strait Islander Health Plan, there remains significant scope for the Commonwealth to pay further attention to ‘valu[ing and prioritis[ing’ the [policy] leadership of Aboriginal and Torres Strait people’ (United Nations 2017, Closing the gap and health para. 4). The capacity to deliberate and evaluate is to have cultural choice in health services (National Health and Medical Research Council 2016). In New Zealand, the Waitangi Tribunal provides a forum for M¯aori to assert such leadership and, as the next section of this chapter shows, to explain why mistrust is perpetuated when M¯aori values and M¯aori leadership are excluded from the policy process.

8.4

Self-Determination and Schooling

Self-determination takes place in social context. It requires that social orders and political practices are grounded in each citizen’s ‘parity of esteem’ (Fraser 2003); a concept which means that it is reasonable for M¯aori to expect publicly funded schools to be sites of rangatiratanga. That is, at the very least, places whose purposes and operations are determined with M¯aori influence, and places which support M¯aori aspirations, helping to equip M¯aori people to live as M¯aori. If, as citizens under Article 3 of the Treaty of Waitangi, M¯aori are entitled to benefit from public expenditure on schooling, it follows that influencing the ways in which that money is spent is legitimate. Furthermore, the Waitangi Tribunal has previously found that the Crown does have educational obligations to M¯aori under the Treaty (Waitangi Tribunal 2005). Obligations which have not, however, routinely influenced state education policy. The tension between education and assimilation on the one hand, and education and the capacity to live as M¯aori on the other, is an enduring policy theme. Native schools were established in 1867 and remained until 1969. They were to teach in English and their curriculums were focused on what one Director-General of Education explained as teaching ‘the lad to be a good farmer and the girl to be a good farmer’s wife’ so that the M¯aori way of life would copy ‘the nuclear family of the pakeha social order’ (cited in Hill 2004, p. 182). There was no expectation that schooling would equip M¯aori for higher education or for work in more highly paid segments of the labour market. However, it was the impact

8

POWER AND PRESENCE: INDIGENISING PUBLIC DECISION-MAKING

187

that this and other public polices had on the M¯aori language that subsequently encouraged M¯aori policy activism in favour of the idea that public education should contribute to language revitalisation. In 1982 the first kohanga reo, or early childhood education institution, which taught in the M¯aori language and with reference to M¯aori epistemologies received public funding. In 1989, kura kapuapa M¯aori extended the concept of culturally contextualised education into the public school system. In 2020, it is possible to receive all of one’s schooling in the M¯aori language. Kura kapuapa M¯aori are publicly funded, but constrained by the national curriculum. Like all New Zealand public schools, they are governed by parent-elected Boards. But their efficacy is often compromised by inadequate public financial support to meet their unique circumstances, difficulty in recruiting teachers with sufficient M¯aori language skills and, in their early days, a paucity of learning materials published in the M¯aori language. The concept of kohanga reo and kura kaupapa M¯aori is consistent with the right to self-determination. It is consistent with the distinctive expression of citizenship. Yet, it remains that M¯aori do not achieve as well as other citizens in their schooling (Bishop et al. 2010) and systemic questions about how, why and for whom decisions are made about schooling and its purposes are a source of mistrust. More broadly, in English language public schooling there remains a ‘pattern of dominance and subordination’ (Bishop and Glyn 1999, p. 7), meaning that decisions about how schooling should work for M¯aori are not routinely made by M¯aori citizens. Yet, citizenship means that M¯aori are as entitled as anybody else to have confidence and trust in schooling, which is why Bishop (2003) proposes that both the education system and classroom pedagogies emphasise ‘empowerment’ and ‘the critical importance of cultural recognition’ (p. 221). Bishop’s model, which informs the Te Kotahitanga teacher professional development programme noted in Chapter 2, is an example of recognition in policy delivery, which could be replicated in other policy domains at the development and evaluation points in the policy process. The extension of the idea that the classroom is ‘a place where young people’s sense-making processes (cultures) are incorporated and enhanced [and]… are seen as ‘acceptable’ and ‘official’’ may help give M¯aori citizens reason to believe that the state belongs to them and serves their interests as much as it does anybody else’s. Trust in the state is a reasonable expectation of citizenship. Trust is enhanced when the state facilitates

188

D. O’SULLIVAN

rather than obstructs self-determination. Obstruction includes the denial of acceptability, which was demonstrated in a particularly graphic fashion in Australia when, in 2008, the Rudd Government (2007–2010) discontinued bi-lingual schooling in the Northern Territory. The Education Minister, Julia Gillard’s argument was that: English is the language of further learning and English is the language of work, and if we want our kids who are growing up today right across the Northern Territory, right across the nation, to have a chance to do an undergraduate degree, do a postgraduate degree, go out and get a good job, then people need to read and write English. (Gillard, in Robinson 2008)

A clear statement was being made about ‘whose knowledge counts’ (Savage et al. 2014, p. 89), or as Sarra (2014) put it ‘who has the greater influence over the perception of who Aboriginal people are and how we behave’ (p. 79)? However, and although there is no nation or state wide effort to validate Indigenous knowledges and aspirations, there are individual examples of both Indigenous and state policy actors creating space, through policy entrepreneurship, for alternative accounts of what education is for and of the interests it should serve. For example, the Aboriginal Community Independent Schools in Western Australia must comply with state policies and legislation, but the independence they achieve through community ownership and governance explains that: The success story of these schools is in their capacity to deliver mainstream education in an environment where learning is nurtured by cultural identity, traditional language in many instances, and a sense of belonging to place. Vastly improved literacy results for students in these schools over the past decade are an obvious measure of their achievements. Harder to measure but evident, community well-being and social functioning is also an important product of these schools. (AISWA 2020, Aboriginal independent community schools, para. 5)

Universities have also assumed important roles in language revitalisation through the development of language programmes and in New South Wales, in 2015, the government took introductory steps towards teaching Indigenous languages in schools, meaning that ‘This is the first generation (of children) who have actually been given permission to speak, their language’ (McNaboe, in Sydney Morning Herald, 1 March 2015).

8

POWER AND PRESENCE: INDIGENISING PUBLIC DECISION-MAKING

189

These are important examples of Indigenous presence in public institutions, but trust requires system wide sustainable commitments which both treaties and the Voice may help to achieve but which, as the New Zealand experience shows, they do not guarantee. One of the ways in which the Key Government (2008–2016) responded to mistrust and attempted to exercise the duty of active protection of the M¯aori interest in education was through Charter Schools (Kura Hourua). Charter schools were state funded, but independently operated, and intended to secure M¯aori agency in the education system, to strengthen M¯aori influence at the policy process’ point of implementation. By 2018, there were 11 such schools, established under legislation passed in 2013 (Education Amendment Act 2013), allowing them considerably more freedom in curriculum, pedagogy and epistemology than publicly operated schools enjoy. They were to cater predominantly for M¯aori citizens and were established under a policy introduced as part of the National party’s Confidence and Supply agreement with the ACT party in 2011 (New Zealand National Party 2011). The policy was supported by the M¯aori party because as its President, a school principal Pem Bird, simply explained it to a parliamentary select committee, ‘M¯aori want to be architects of their own futures and destinies’ (Bird cited in Radio New Zealand 2013, para. 7). Charter schools had mixed success, though overall their students achieved to a higher level than comparable groups in state administered schools (Martin Jenkins 2018). There were some instances of comparatively ‘outstanding’ outcomes (Curtis and Tawhiwhirangi 2018). Yet in 2018, the Ardern Government (2017–) introduced legislation to discontinue these schools. Their mixed success was among the reasons, but more importantly there was an ideological commitment to preventing these schools from continuing outside the public system. The government preferred, instead, to rely on public schooling to deliver better outcomes for M¯aori (Hipkins, cited in Newshub 2018). The government was influenced by the use of charter schools in the United States to support the development of education as a tradable commodity with schools operating as private profit-making entities. Schirmer and Apple (2016) argue that charter schools have sometimes allowed citizens to make positive choices about the education of their children. However, the commodification of the school does have broader implications that the New Zealand government was arguably wanting to avoid. For example, the status of citizen is lost as one becomes a customer or client of a private enterprise. Schooling

190

D. O’SULLIVAN

is purchased as a product. One’s voice is heard through the decision to purchase one product over another. It is not heard as a citizen seeking to influence the character of a public good. However, as Apple (2011) has also argued: ‘We should never romanticize what is happening to all too many children of color in our public schools’ (p. 27). This book’s discussion of the recent Charter Schools debate in New Zealand rejects a romantic view of the public school, though it is not a defence of the commodification of schooling. It is not a defence of charter schools per se, but a defence of distinctive M¯aori citizenship and of rangatiratanga through schooling. It is a defence of the right for M¯aori to make decisions about how schooling should work in their favour. In 2018, as an expression of both citizenship and rangatiratanga and perhaps as an example of Blackstock’s (2011) ‘moral courage’, two M¯aori education professionals, Toby Curtis and Iritana Tawhiwhirangi, put it to the Waitangi Tribunal that discontinuing Charter Schools breached the Crown’s obligations in respect of the Treaty. For the Minister of Education the countervailing moral argument was simple: ‘we think all M¯aori students, regardless of what school they go to are entitled to a quality education, and M¯aori students shouldn’t be forced to leave the public education system and go to private schools in order to have the quality of education that they deserve’ (Hipkins, cited in Newshub 2018, para. 18). The deputy Prime Minister, Winston Peters, put the argument in equally simple terms: ‘The M¯aori people in this country want the best that’s available to the best of citizens of this country. They don’t want a separate education system’ (Peters, cited in Newshub 2018, para. 4). However, the inference that ‘best’ is objectively definable, and properly defined by the state alone is inconsistent with long-established M¯aori claims to active participation in policy delivery, through making decisions about how, why and by whom M¯aori children are taught. There is also an inference in Hipkins’ argument that noting a M¯aori entitlement to a quality education is the same as providing it. From the perspective of a M¯aori right to self-determination, in and through publicly funded schooling, the argument was not about the efficacy of charter schools per se, but a question of how and by whom decisions are made about the provision of schooling to M¯aori citizens. Curtis and Tawhiwhirangi (2018) told the Waitangi Tribunal that discontinuing charter schools breached established Treaty principles of partnership, active protection, reciprocity and equity (2018). They argued

8

POWER AND PRESENCE: INDIGENISING PUBLIC DECISION-MAKING

191

that that these schools were important and ‘entitled to a degree of selfdetermination’ (p. 3). Breaching Treaty principles by closing the schools ‘have caused or are causing significant and irreversible prejudice’ by (a) Eroding M¯aori rangatiratanga by exercising k¯awanatanga: (i) Without regard to the disproportionate effect the decision to abolish Kura Hourua will have on M¯aori; (ii) Without regard to the views and aspirations of M¯aori in respect of education and Kura Hourua in particular; (iii) Without seeking to inform itself of the views and aspirations of M¯aori in respect of education and Kura Hourua in particular; (iv) Without evidence to justify the termination of Kura Hourua; (v) Without providing adequate alternative options for M¯aori students; (b) Compromising the valuable role played by Kura Hourua in advancing M¯aori achievement in primary and secondary education; (c) Causing harm and loss to current and prospective M¯aori students of Kura Hourua by refusing to maintain or develop an educational framework that reduces inequities suffered by M¯aori in primary and secondary education; and (d) Dislocating M¯aori students currently enrolled at Kura Hourua (pp. 13–14). Balancing rangatiratanga and kawanatanga requires intertwining the two so that rangatiratanga is not only an independent authority, but also a constituent of kawanatanga. This is to reflect the right to citizenship as a body of political capacities, influencing and informing the exercise of kawanatanga. From this perspective, of rangatiratanga’s exercise within government, M¯aori are more strongly positioned to contest unbalanced distributions of decision-making power. With reference to an earlier Tribunal finding (2005) that kawantanga involves the ‘active protection of rangatiratanga’ (p. 34), Curtis and Tawhiwhirangi’s (2018) claim was that state policy making must have ‘a fully informed understanding of and respect for the M¯aori interest’ (p. 8). And the same understanding of ‘how M¯aori interests are affected’ by a particular policy decision. The claimants also asked the Tribunal to consider that the Crown breached the principles of the Treaty by ‘failing to provide alternatives which make appropriate provision for the needs

192

D. O’SULLIVAN

of M¯aori’ (p. 38). Hipkins and Peters argument that the public school system, ought to serve M¯aori citizens as effectively as all others, is not the same as providing evidence that it is in fact so effective. Aspiring to the equal consideration of all citizens is morally important, but achieving that equality is a more complex and contested process, that state centralised provision and decision-making cannot guarantee. Curtis and Tawhiwhirangi (2018) instead submitted that distinctive approaches to the educational needs of M¯aori citizens are justified (p. 55). Their twofold argument was that as a matter of distributive justice M¯aori are ‘chronically underperforming in mainstream education’ (p. 54) and from the perspective of self-determination, M¯aori are entitled to ‘schools with greater curriculum flexibility and autonomy (rangatiratanga)’ (p. 56). In short, M¯aori are entitled to public policy that works, ‘so forcing M¯aori back into a system in which they have historically performed poorly… cannot be a proper exercise of the Crown’s kawanatanga’ (p. 56). Most importantly, Curtis and Tawhiwhirangi (2018) claimed that the Crown had not explained how abolishing the schools would improve M¯aori educational outcomes (p. 63). It is not sufficient to state a philosophical belief in public schooling’s duty to serve everybody equally well. Duty is not capacity. The philosophical contest is a contest for and of M¯aori independence, on the one hand, and a M¯aori share in the authority of the state on the other. The idea of universal state provision of schooling was set against the idea that the state does not monopolise best educational practice. M¯aori providers are entitled to play an important role in correcting obvious market failure in education. The denial of markets is an essential presumption of a universal undifferentiated view of citizenship. This government perspective, contrasts with Sen’s (1999) argument that the right to markets is an essential constituent of human development, and preliminary to people’s capacity to lead lives that they have reason to value. The state’s best intentions to use schooling to raise M¯aori capacities for self-determination outside the school system are, perhaps, not so likely to succeed that they justify restricting those capacities inside the system? M¯aori influence inside the system is especially important as a review of contemporary school governance arrangements, which may weaken school’s independence, is under government consideration. Contemporary arrangements make each school an independent Crown entity with greater opportunities for self-determination than those enjoyed by schools

8

POWER AND PRESENCE: INDIGENISING PUBLIC DECISION-MAKING

193

in any Australian jurisdiction. However, if these opportunities are diminished in favour of more centralised control, then the strongest argument against charter schools—that the system is already sufficiently flexible to admit M¯aori self-determination—is also diminished. Curtis and Tawhiwhirangi’s (2018) arguments combine both liberal and Indigenous understandings of the state, as an entity concerned with the protection of liberty, not its deprivation. From a liberal perspective, liberty is only justly deprived when one person or group’s liberty impinges on that of another. Liberty may be expressed through agency in policy-making, in cultural context, and when used to advance noncolonial ambitions. Agency is a politics of indigeneity. A politics of transformative potential. Significant because self-determination is ultimately the political capacity to exercise agency over one’s own affairs, and the capacity to define freedom for oneself. However, these attributes of self-determination are at least partly enabled or curtailed, by the legislative frameworks that parliament establishes. Agency is especially diminished when people are excluded from public policy decisions. Exclusion leaves open the possibility for non-Indigenous decision-makers to rely on incomplete knowledge of a people and its aspirations, to think from ill-informed perspectives, and thus be unable to frame policy problems accurately or independently. This is why policy making is potentially a site of colonial hegemony which M¯aori seek to disrupt with reference to the Treaty of Waitangi.

8.5 Indigenous Agency: Subjecthood, the State and Self-Determination Curtis and Tawhiwhirangi’s (2018) claim to rangatiratanga in schooling is important because liberal self-determination means that public institutions are not institutions exercising authority over subjects. These institutions evolve and may be given new forms by the citizenry, as its political values and aspirations change. They change to reflect the human imagination’s unlimited potential. This is why one needs a broader conception of human agency than the Independent Working Group on Constitutional transformation provides with its principal concern for people as the subjects of institutions (introduced in Chapter 5). Subjecthood is not a meaningful political status. The civic citizen is, in contrast, free to engage in public affairs and to help frame his or her society (Tully 2014). The free city requires citizens to exercise their

194

D. O’SULLIVAN

freedom and not simply have access to it at an abstract level (Tully 2014). This is because: the ‘civic citizen is not the citizen of an institution… but the free citizen of the ‘free city’ (Tully 2014, p. 39). The consequent political questions which this book has tried to answer are how might Indigenous societies secure and demonstrate the attributes of the free city and how, too, might the state lose its colonial character so that it becomes a site of freedom for Indigenous citizens as much as it is for anybody else? At least as a starting point, the answers lie in strengthening democracy’s deliberative capacities to allow democratic systems to better admit preferred Indigenous modes of decision-making, and to allow citizenship to develop as an expression of self-determination. As well as having distinctive interests, conditioned by neo-colonial experiences, Indigenous peoples may wish to deliberate according to distinctive values. They may wish particular rules of engagement to prevail, to provide transformational responses to Strakosch’s (2019) argument that policy itself is a site of colonial hegemony. They show why substantive political voice is preliminary to creating possibilities for self-determination through public policy. They show why increasing citizenship’s agency is causally linked to the possibilities for and of self-determination. The appeals to the Waitangi Tribunal and (Australian examples) mentioned in the previous chapter showed how and why Indigenous people exercise their citizenship in favour of self-determination. These cases were concerned with specific policy problems. Their potential solutions introduced the idea that the ways in which policy works is as important to self-determination as the detailed circumstances of a particular state action or inaction. Strakosch (2019) shows why by demonstrating that ‘policy is a site of problematisation’ (p. 117), and by examining the fundamental dynamics of sovereignty and settler colonialism that condition the nature of the policy relationship itself’ (p. 119). She shows that in Australia, Indigenous policy is ‘unstable and highly complex, with organisations, programs and processes rapidly changing and entangling’ (Strakosch 2019, p. 117). Single Indigenous led purchasing agencies, accountable to Indigenous citizens, may foster coherence and co-operation across policy domains (discussed in Chapter 7). Policy failure is complex. Its proper analysis requires a clear account of failure’s ideological foundations. Policy does not always fail by mistake. It may fail because the aspirations of its makers are inconsistent with the aspirations of its subjects. The Australian Indigenous policy system ‘is subject to constant cycles of crisis and reinvention’ (Strakosch 2019,

8

POWER AND PRESENCE: INDIGENISING PUBLIC DECISION-MAKING

195

p. 5). Eliminating the distance between these two groups of participants in the policy process may then be a requirement for policy success. The policy subject has no say in determining what success might look like. This is why the difference between subject and citizen and the difference between policy-makers and policy subjects is a pre-condition for policy success. These arguments do not mean that failure is always intended as a way of preserving the state’s hegemonic relationship with Indigenous peoples. But failure is the likely outcome of a policy process that does not presume Indigenous agency as its fundamental starting point. A presumption that explains cycles of inconsistency, incoherence and dissonance between the people who make policy and the people who, through exclusion, become subjects rather than citizens. It is therefore important that both political theory and general policy discourse transcends the ‘twin narratives of government failure and Indigenous incapacity’ (Strakosch 2019, p. 817). The first step is to create a clear and simple relationships between Indigenous peoples’ expectations of policy and what policy actually tries to achieve. Creating this relationship is what both Blackstock (2011) and Curtis and Tawhiwhirangi (2018) were trying to achieve in the cases earlier discussed. These examples suggest that entrenched policy failure is primarily a moral failing, while in Australia, Indigenous policy also regularly fails against its own ‘stated aims’ (Strakosch 2019, p. 114). Moral failure also occurs when policy fails because it lacks objective framing. In this case, policy ‘is a depoliticised, technical practice of public management’ and seeks to ‘domesticate’ Aboriginal and Torres Strait Islander peoples, perform their dysfunction and demonstrate state legitimacy’ (Strakosch 2019, p. 114). However, if one considers the things that Indigenous peoples have said they expect treaties to achieve there is a deep tension because, from these perspectives, the capacity to set objectives and define success is an essential expression of agency as a self-determining people. These capacities are morally and politically important because: ‘This is not the farming sector, the business sector or the science sector. The first peoples of Australia are polities’ (Davis 2016, p. 10). For as long as ‘pre-contact Indigenous polities simply refuse to stop being themselves’ (Simpson 2014, p. 2) there will always be a challenge to the nation state to surrender its colonial essence.

196

D. O’SULLIVAN

Colonisation is confronted by the ‘persistence of Indigenous sovereignty and the always incomplete settler assertion of legitimate political possession’ (Strakosch 2019, p. 119), and the purpose of a liberal theory of indigeneity is to ensure that post-settler states are not the ‘white possessions’ that Moreton-Robinson describes (2015, p. xii). The success of this aspiration would be reflected in policy settings where Indigenous people pursue aspirations that they have decided are important, which is quite different to a policy paradigm concerned with the state conceptualising people as problems to be solved. This more positive and self-determining approach to policy-making is also consistent with the view that as polities, Indigenous peoples are not the objects of a benevolent welfare policy, but political entities with a claim to inherent agency. From this perspective, they also have a claim to negotiate the terms of their engagement with others through a process of social contract, as it was discussed in Chapter 4, in particular. Yet as Strakosch (2019) explains there has, in Australia, ‘been no moment of profound institutional transformation or substantive return of jurisdiction’ (p. 114)—there has been no social contract. There have, instead, been incremental changes suggesting that within the liberal order greater self-determination may not necessarily depend on a single transformative moment but on a profound though gradual transformation of values. A transformation in the values that underlie the terms of association between Indigenous peoples and the state and between Indigenous people and other citizens, which presupposes seeing Indigenous people as agents rather than subjects of public policy. If this view of Indigenous people is reversed, the political relationship ‘forecloses the possibility of accepting Indigenous political independence and… always presents Aboriginal and Torres Strait Islanders as consenting policy subjects’ (Strakosch 2019, p. 14), and policy remains ‘the key space where the Australian state encounters Aboriginal and Torres Strait Islander polities and seeks to resolve colonial conflict in its favour’ (Strakosch 2019 p. 15). It is when this goal overrides the objective of improving Indigenous well-being that policy failure has become entrenched. If subjecthood prevails over independence, it will not be possible for Indigenous nations and the state to conclude treaties as foundations for non-colonial political relationships. As foundations for ‘coming together after a struggle’ as the intended outcome of the Makarrata Commission that the Uluru Statement from the Heart proposed in 2017. The expectation that it is,

8

POWER AND PRESENCE: INDIGENISING PUBLIC DECISION-MAKING

197

nevertheless, possible to come together shows that there is not necessarily a tension between ‘decolonisation’ and ‘post-conflict reconciliation’ as Strakosch (2019, p. 115) proposes. The arguments for reconciliation that have been advanced in Australia, and discussed in earlier chapters, do not presume that the conflict has concluded. Reconciliation is an ongoing political relationship, not capable of conclusion. Its three essential elements are the recognition of wrongdoing, atonement and resolve not to repeat the transgression of justice. If the wrongdoing is not acknowledged there can be no decolonisation. Nor can decolonisation emerge if there is no correcting of the consequences of injustice and no resolve to discontinue the colonial project. However, these are ideals and, in practice, policy remains a powerful site for the marginalisation of Indigenous voice. For example, in 2016, a Senate inquiry found that the Indigenous Advancement Strategy did not ‘give weighting to the contribution and effectiveness of Aboriginal and Torres Strait Islander organisations to provide to their community beyond the service they are directly contracted to provide.’ (Parliament of Australia 2016, p. vii). Its approach to service delivery was fragmented and unable to respond to the diversity of people’s needs in an integrated or coherent fashion. Anderson (2015) responded to deep structural flaws in the Strategy with the observation that it ‘is inconceivable any Australian government would be so politically inept as to inflict this approach to program reform on mainstream services in, for example, education, community services or health’ (p. 56). Or as Strakosch (2019) put it, there is ‘at least in this instance, a tolerance of poor practice, rapid change and ineffectiveness that appears unique to this area’ (p. 121). One of the reasons for this tolerance of inept policy processes is that there are no institutional mechanisms, within the policy system, for Indigenous people to advance the simple but far-reaching claim for public policy that works. In New Zealand, the Waitangi Tribunal and other spaces of influence and voice provide such mechanisms, and one of the most important arguments in favour of an Indigenous Voice to parliament, in Australia, is that it would expose all public policy to Indigenous scrutiny. In Australia, the Voice would mean that policy intent could be tested and Indigenous exclusion from the policy-making process, as a determinant of policy failure, could be remedied. The significance of the Voice contributing to policy formation in this way is that it would

198

D. O’SULLIVAN

confront what Strakosch (2019) calls the ‘political and colonial - functions of Australian Indigenous policy’. Significant, because these are the conditions, Strakosch (2019) argues, that make a tolerance of ineptitude ‘understandable’ (p. 121). As a subject, the recipient of public policy has no contribution to make to decisions about what constitutes the problem to be solved, the gap to be closed, or the conception of the good life to be pursued. There may, however, be scope for the Voice and other mechanisms of inclusion to contribute to more settled and coherent Indigenous-led approaches to policy research and policy development. The transformation of Australian social, political and economic life such that the full ambitions of Aboriginal and Torres Strait Islander people as individuals and nations might be realised requires attention to new and different kinds of politics, and necessitates a new research agenda that considers the dynamics and structures of Indigenous-settler relations as a matter of priority. Our focus on relationality here is not because Indigenous Australians exist only in relation to the state, but because the state only exists in relation to its dispossession of Aboriginal and Torres Strait Islanders. (Nakata and Maddison 2019, p. 408)

For a liberal democracy to work effectively for Indigenous peoples, there must be secure and sustainable institutional mechanisms through which Indigenous citizens can hold policymakers to account. This is because the policy process is ‘a key site of political encounter’ (Strakosch 2019, p. 115). It is where different conceptions of sovereignty meet and where different conceptions of the good life compete. It is partly because policymaking is not an objective process, pursuing broadly accepted conceptions of what is good and desirable, that it so often fails. Bureaucracy is at ‘the frontline of colonisation’ (Strakosch 2019, p. 115) and the underlying point of contention that explains Blackstock’s (2011) moral courage and Curtis and Tawhiwhirangi’s (2008) claim for M¯aori leadership, values and decision-making in schooling. With these examples in mind, it is significant that Strakosch (2019) insists that hers is not a ‘fatalistic’ account of the policy process, but that it shows ‘policy as a primary site of political change. Rather than always looking to more conventional political spaces such as law or public opinion for transformation, we may be able to use policy to establish more respectful coexistent relationships’ (Strakosch 2019, p. 117). This point is reinforced by the significant contribution the guaranteed M¯aori seats in the New Zealand parliament have made

8

POWER AND PRESENCE: INDIGENISING PUBLIC DECISION-MAKING

199

to ensuring M¯aori voice in at least the legislative part of the policy process. The outstanding task in New Zealand is to institutionalise M¯aori agency within the bureaucratic sphere of government, while securing and strengthening independent agency through iwi and through the M¯aori shadow state operating in health and social service delivery agencies, for example.

8.6

Conclusion

This chapter has considered some of the ways in which Indigenous agency is contested vis-à-vis the assertion of colonial power in public policy making. It shows the importance of presence as an outcome of recognition, but also from the New Zealand experience, the importance of the Treaty of Waitangi as an instrument of resistance. The chapter has considered moral courage as a means of contesting bureaucratic tendencies to do harm to Indigenous people and affront Indigenous values. But it also shows that these tendencies are neither inevitable nor immutable constituents of bureaucratic operations, and that treaties may help Indigenous nations in Australia to confront policy as hegemony as Strakosch (2019) described it. Indeed, the policy process that she describes is one of misrecognition and the ways in which it is challenged, with reference to the Treaty of Waitangi in New Zealand, provides an important counterpoint. Although M¯aori influence does not always reflect the presumptions of policy parity, the Treaty’s affirmation of rangatiratanga and promise of distinctive citizenship, means that the expectation is always present. M¯aori and the state have recognised one another, by virtue of the Treaty, and although the scope of recognition’s political significance is contested, the presumption remains and it is one of the variables helping to explain the relatively stronger Indigenous presence and sharing in the sovereign authority of the state that exists in New Zealand. Furthermore, and as previous chapters have considered, the United Nations’ Declaration on the Rights of Indigenous Peoples (2007) gives international sanction to the concept of treaties as instruments of enduring recognition, and as instruments which may positively influence the workings of the postsettler state. Treaties do not guarantee justice. The New Zealand Treaty is routinely breached by the Crown, but its overarching commitments provide moral, political and jurisprudential frameworks for thinking about how power and influence should be distributed and how, by whom and for whose purposes it should be exercised.

200

D. O’SULLIVAN

References AISWA. (2020). Aboriginal independent community schools. https://www.ais.wa. edu.au/aics. Accessed 1 July 2020. Anderson, I. (2015). The crisis of Australia’s Indigenous policy. Meanjin Quarterly, 74(3), 54–59. Anderson, I. (2018). Deputy Secretary, Indigenous Affairs Group, Department of the Prime Minister and Cabinet, Committee Hansard, Canberra, 25 June 2018. Apple, M. W. (2011). Grading Obama’s education policy. Progressive, 75(2), 24– 27. Bishop, R. (2003). Changing power relations in education: Kaupapa M¯aori messages for ‘mainstream’ education in Aotearoa/New Zealand. Comparative Education, 39(2), 221–238. Bishop, R., & Glynn, T. (1999). Culture counts: Changing power relations in education. Palmerston North: Dunmore Press. Bishop, R., O’Sullivan, D., & Berryman, M. (2010). Scaling up education reform: Addressing the politics of disparity. Wellington: NZCER Press. Blackstock, C. (2011). Wanted: Moral courage in Canadian child welfare. First Peoples Child & Family Review: An Interdisciplinary Journal Honouring the Voices, Perspectives, and Knowledges of First Peoples, 6(2), 35–46. Craik, N., Gardner, H., & McCarthy, D. (2017). Indigenous–corporate private governance and legitimacy: Lessons learned from impact and benefit agreements. Resources Policy, 52, 379–388. Curtis, T., & Tawhiwhirangi, I. (2018). Statement of claim in the matter of a claim called the Partnership School/Kura Hourua Claim by Sir Toby Curtis and Dame Iritatana Tawhiwhirangi for and on behalf of the claimants and M¯aori generally. https://forms.justice.govt.nz/search/Documents/WT/wt_ DOC_139924979/Wai%202770%2C%201.1.001.pdf. Accessed 11 July 2020. Davis, M. (2016). Gesture Politics. The Monthly Issue(118), 8–12. Fraser, N. (2003). Rethinking recognition: Overcoming displacement and reification in cultural politics. In B. Hobson (Ed.), Recognition struggles and social movements: Contested identities, agency and power (pp. 21–32). Cambridge: Cambridge University Press. Hill, R. S. (2004). State authority, Indigenous autonomy: Crown M¯ aori relations in New Zealand/Aotearoa 1900–1950. Wellington: Victoria University Press. Hobbs, H. (2018). A territory treaty. https://www.nlc.org.au/media-publicati ons/a-territory-treaty. Accessed 10 July 2020. Kidder, R. (2003). Moral courage: Taking action when your values are put to the test. New York: HarperCollins. Lipsky, M. (1980). Street-level bureaucracy: The critical role of street-level bureaucrats. New York: Russell Sage Foundation.

8

POWER AND PRESENCE: INDIGENISING PUBLIC DECISION-MAKING

201

Martin Jenkins. (2018). Multi-year evaluation of partnership schools/kura hourua policy: Summary of findings across years. https://www.educationcounts.govt. nz/__data/assets/pdf_file/0008/184841/Multi-Year-Evaluation-of-Partne rship-Schools-Kura-Hourua-Policy-Final-Evaluation-Report.pdf. Accessed 14 July 2020. Moreton-Robinson, A. (2015). The white possessive: Property, power, and Indigenous sovereignty. Minneapolis: University of Minnesota Press. Nakata, S., & Maddison, S. (2019). New collaborations in old institutional spaces: Setting a new research agenda to transform Indigenous-settler relations. Australian Journal of Political Science, 54(3), 407–422. National Health and Medical Research Council. (2016). NHMRC translating research into policy and practice (TRIPP) forum. www.nhmrc.gov.au/_files_ nhmrc/file/your_health/Indigenous/final_tripp_forum_report_pcic_appr oved.pdf (site discontinued). Neville, A. O. (1947). Australia’s coloured minority. Sydney: Currawong Publishing Company. Newshub. (2018). M¯ aori leader claims Govt ‘bullying’ charter schools, urges PM to show aroha. https://www.newshub.co.nz/home/politics/2018/07/ M¯aori-leader-claims-govt-bullying-charter-schools-urges-pm-to-show-aroha. html. Accessed 14 July 2020. New Zealand National Party. (2011). Confidence and Supply Agreement with ACT New Zealand. https://img.scoop.co.nz/media/pdfs/1112/Nat ionalACT_Confidence_and_Supply_Agreement.pdf. Accessed 7 July 2020. O’Sullivan, D. (2015). Indigenous health: power, politics and citizenship. Melbourne: Australian Scholarly Publishing. O’Sullivan, D. (2018). The nursing and midwifery codes of conduct: Privilege, prejudice and the Indigenous citizen. https://www.thepolicyspace.com.au/ 2018/04/241-the-nursing-and-midwifery-codes-of-conduct-privilege-prejud ice-and-the-Indigenous-citizen. Accessed 12 July 2020. Oxfam Australia. (2018). Submission to The Joint Select Committee on Constitutional Recognition relating to Aboriginal and Torres Strait Islander Peoples. Submission 274. Parliament of Australia. (2016). An inquiry into the impact on service quality, efficiency and sustainability of recent Commonwealth Indigenous Advancement Strategy tendering processes by the Department of the Prime Minister and Cabinet. An inquiry into the impact on service quality, efficiency and sustainability of recent Commonwealth Indigenous Advancement Strategy tendering processes by the Department of the Prime Minister and Cabinet. https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/ Finance_and_Public_Administration/Commonwealth_Indigenous/Report. Accessed 14 July 2020.

202

D. O’SULLIVAN

Radio New Zealand. (2013). M¯ aori Party president makes plea for charter schools. https://www.rnz.co.nz/news/national/129219/M¯aori-partypresident-makes-plea-for-charter-schools. Accessed 10 April 2016. Robinson, N. (2008). Push for English causes Aboriginal Backlash. The Australian. www.theaustralian.news.com.au/story/0„24678230-12149,00. html. Accessed 2 November 2010. Sarra, C. (2014). Strong and smart—Towards a pedagogy for emancipation education for first peoples. London: Routledge. Savage, C., Tarena, E., Te Hemi, H., & Leonard, J. (2014). Te Tapuae o Rehua: Iwi engagement in higher education in Te Waipounamu. In F. Cram, H. Phillips, P. Sauni, & C. Tuagalu (Eds.), M¯ aori and Pasifika higher education horizon. Bigley: Emerald Books. Schirmer, E. B., & Apple, M. W. (2016). Teachers, school boards, and the power of money: How the right wins at the local level. In The Educational Forum, 2016 (Vol. 80, pp. 137–153, Vol. 2). London: Taylor & Francis. Sen, A. (1999). Development as freedom. Oxford: Oxford University Press. Simpson, A. (2014). Mohawk Interruptus: Political life across the borders of settler states. Durham: Duke University Press. Strakosch, E. (2019). The technical is political: Settler colonialism and the Australian Indigenous policy system. Australian Journal of Political Science, 54(1), 114–130. The Truth and Reconciliation Commission of Canada. (2015). Honouring the truth, reconciling for the future: Summary of the final report of the Truth and Reconciliation Commission of Canada. www.publications.gc.ca/pub?id=9.800 288&sl=0. Accessed 12 July 2020 Tully, J. (2014). On global citizenship. London: Bloomsbury Academic. United Nations. (2014). End of Mission Statement by the United Nations Special Rapporteur on the rights of Indigenous peoples, Victoria Tauli-Corpuz on her visit to Australia https://www.ohchr.org/EN/NewsEvents/Pages/Dis playNews.aspx?NewsID=21473&LangID=E. Accessed 12 July 2020. United Nations. (2017). United Nations Permanent Forum on Indigenous Issues Questionnaire to Governments Australia. https://www.un.org/esa/ socdev/unpfii/documents/2017/16-session/member-states/Australia_State_ Response.pdf. Accessed 12 July 2020. Waitangi Tribunal. (2005). The report into the Aotearoa Institute claim concerning Te Wananga o Aotearoa. https://forms.justice.govt.nz/search/Documents/ WT/wt_DOC_67993424/Wananga.pdf. Accessed 10 July 2020. Watson, I., & Venne, S. (2012). Talking up Indigenous peoples’ original intent in a space dominated by state interventions. In E. Pulitano & B. Trask (Eds.), Indigenous rights in the age of the UN Declaration (pp. 87–109). Cambridge: Cambridge University Press.

CHAPTER 9

Conclusion

In 2015, a Referendum Council was established to consider Indigenous peoples’ recognition in the Australian Constitution, which could happen only by way of referendum. In 2017, the Council released its unexpectedly far-reaching recommendations. Recognition had long been discussed as a general idea, but for successive governments it was never more than a symbolic noting of historical fact. However, a Makarrata Commission to oversee agreements on coming together after a struggle, would expose the moral fragility of the modern state. Agreements based on truth-telling would require the state to consider Indigenous nations, not just as prior occupants, but as occupants whose status as independent polities was disrupted in favour of a political system to which they did not consent, and from which they are routinely and systematically excluded. The Referendum Council’s proposal for democratic inclusion through a constitutionally enshrined Voice to parliament is also potentially transformative. It would constitute explicit recognition of a distinctive Indigenous place in modern democracy. It would make democracy work better by ensuring that Indigenous perspectives are always able to contribute to policy debate, and by ensuring that these perspectives could be expressed to parliament and through parliament, to the Australian people. More symbolic forms of recognition which governments have previously considered, were not in contrast, concerned with closing gaps © The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 D. O’Sullivan, Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State, https://doi.org/10.1007/978-981-33-4172-2_9

203

204

D. O’SULLIVAN

in political standing. Gaps which colonialism requires, and which keep Indigenous influence peripheral to state policy-making. So, it is significant that the Council’s recommendations provide foundations for a different kind of politics. Certainly, neither agreement making nor a Voice would guarantee non-colonial political relationships, but they would legitimise such an expectation and give it an institutional basis from which to develop. Truth telling would make transparent the Indigenous political authority that has been transgressed. Agreement making, especially through treaties, would require each party to admit those transgressions and recognise the other’s right to substantive political presence. Recognition cannot be satisfied with concessions provided only by the benevolence of the state. Instead, it presumes that Indigenous nations and the state approach one another with equal capacity to influence the terms of their ongoing relationships. It requires each party to recognise that the other is legitimately present and has certain political capacities that it is just and reasonable to protect. In New Zealand, although its terms and application are often contested by the Crown, the Treaty of Waitangi explicitly affirms a M¯aori right to independence on the one hand, and on the other, a right to participation and influence in state affairs as distinctively M¯aori citizens. Independence may be exercised through the rangatiratanga or chiefly authority that the Treaty affirms in relation to M¯aori land, language and culture, for example. This authority may intersect with the capacity to deliberate with equal opportunity for influence in all matters of public policy. If treaties are instruments of mutual recognition, Indigenous nations must be able to recognise not simply the inevitability of the state’s ongoing presence, but the moral legitimacy of that presence. In short, the state must make itself legitimate, which is what makes recognition a difficult but transformative task. Its ultimate outcome would be a noncolonial state distinguished by Indigenous people finding reason to say that the state served their interests as well as it served the interests of any other citizen. Recognition is preliminary to self-determination. It means that the state does not unilaterally set the terms of Indigenous engagement. It presumes that Indigenous people will deliberate in public affairs for their own purposes and from perspectives that are contextualised by both culture and colonial experience. Treaties may, then, reflect the scope of Indigenous political authority and establish the limits to state incursions into Indigenous people’s lives. In Australia, recognition through treaties

9

CONCLUSION

205

would give material substance to the High Court’s finding that Australia was not terra nullius , or unoccupied land, when British settlement began in 1788, for example. Recognition of a people’s physical presence provides a rationale for thinking about the nature of their political presence. When people are present as citizens and deliberators of political standing, a challenge is raised to the practice of the state making policy on behalf of Indigenous people and without their consent. Whereas the Voice, for example, would ensure that public policy proposals would always be subject to Indigenous critique. There would always be capacity for Indigenous led policy proposals. Through other measures, there could also be institutional arrangements to ensure that Indigenous policy makers were accountable to Indigenous citizens. Substantive presence transcends the right to be consulted as a policy subject. It is also more than the right to participate in policy development, but a right to influence the scope and purpose of that participation. In New Zealand, the state is legitimate by virtue of the Treaty of Waitangi. But the scope of state authority is limited by rangatiratanga and by the share in its sovereign authority that M¯aori hold as citizens. The distinctiveness of that citizenship evolves with time, context and changes in people’s expectations of the politically possible. In 2020, it includes guaranteed representation in parliament which means that M¯aori candidates in M¯aori constituencies may make their appeals for the support of M¯aori voters from culturally contextualised perspectives, unconstrained by the need to court votes from a broader non-M¯aori constituency. They may appeal to distinctive M¯aori aspirations and interests including the protection of those interests in relation to land and culture as rights of prior occupancy, which are otherwise diminished by the need to compete for a fair hearing with the prevailing concerns of other citizens. Distinctive citizenship may, for example, admit a right to own land and use it according to culturally preferred means such as collective ownership. It may also include the right to language. In New Zealand, the M¯aori language is an official language of the state. One is entitled to be educated in the M¯aori language and to speak in the M¯aori language in parliament and judicial proceedings. Distinctive citizenship may also mean that one is entitled to participate, under M¯aori leadership, to defining cultural cognisance in health care. One may contribute and lead in the establishment of M¯aori health services and in making funding decisions through an administrative structure such as an independent M¯aori Health Authority.

206

D. O’SULLIVAN

Distinctive citizenship could also include policy leadership in decisions about how and why schools are operated to serve whose interests. These are presumptions of M¯aori presence wherever decisions are made. They complement guaranteed representation in parliament and the developing practice of M¯aori membership of the executive that is at least proportionate to the M¯aori share of the population. Increasingly M¯aori membership of the judiciary, as the third branch of government is also important, and essential to give effect to Justice Williams’ observation, cited in Chapter 3, that the Crown is M¯aori as much as it is anything else. On the other hand, the New Zealand charter schools’ case, discussed in Chapter 8, was an argument about the limits to state powers to curtail M¯aori influence over the education of M¯aori citizens juxtaposed with the right of the state to govern. It raised the argument that the state’s right to govern is not unconditional. The right to govern may be a sovereign right, but it is not a right that extinguishes rangatiratanga, because the Treaty of Waitangi explicitly affirms that rangatiratanga endures. At the same time, the state’s right to govern is not an abstract right. It arises from the people’s consent, and M¯aori are as entitled as anybody else to contribute to that collective authority. When political authority is thought about in these ways, the Indigenous right of influence is taken for granted. It is an outcome of mutual recognition. In Australia, there is no political need to recognise Indigenous nations in any substantive way. But the state may, nevertheless, accept a moral legitimacy to admit that it is just for Indigenous people to be present as Indigenous. A different kind of public sovereignty therefore logically follows; a sovereignty that is not the hegemonic authority over others that distinguishes colonialism, but a sovereignty that Indigenous people share with no less authority than any other citizen. Being able to share in public sovereignty is an essential determinant of personal liberty and of the capacity to influence the society in which one lives. However, these are ideals. The presumption that Indigenous nations and citizens belong on the periphery of Australian public life remains especially influential. While it is true that persistent Indigenous challenges to this presumption are incrementally creating scope for policy consultation and partnership this is not, as yet, true for policy leadership even of the kind that sometimes occurs in Canada and New Zealand, for example. In Australia, the Federal executive comprises one Indigenous member. He was necessarily elected to parliament by, and to represent, a predominantly non-Indigenous constituency. Indigenous membership of the

9

CONCLUSION

207

parliament and the executive may occur, but it is always at the discretion of the non-Indigenous citizenry and with accountability always to non-Indigenous Australia. Yet from recognition, as the simple acknowledgement of one by another, there may develop a rationale for working out how the rights of inclusion may be advanced alongside the right to independent nationhood. Recognition presumes mutual obligations. As a constituent of a liberal theory of indigeneity it presumes that there is an obligation to admit that culture counts in the ways that people conceptualise freedom and the ways in which it makes epistemological sense for people to express that freedom. Culture is also a determinant of the kinds of institutions in which it makes sense to express one’s freedom. If the right to selfdetermination is accepted as a right that belongs to all and not just some people, it is reasonable that Indigenous nations determine for themselves the institutions and political arrangements through which they will exercise those freedoms. In relation, for example, to land management practices, including balancing the use of land for material sustenance with spiritual and environmental imperatives. The question for treaty making in Australia is a question of the kinds of political authority that Indigenous people wish to assert, and which of those bodies of authority most properly belongs to the Indigenous nation and which most properly belongs to the Indigenous person as a citizen of the state. While people may wish to negotiate settlements for land alienation, economic and cultural deprivation or other transgressions of justice, these are instruments of restitution, rather than instruments that recognise the scope and limits of one party’s political authority visa-vis another’s. If treaties are political agreements made possible by each party’s recognition of the other’s standing then one has set the terms of what ought to be an enduring relationship. Restitution corrects a transgression of justice. It is the transgressor’s acknowledgement of wrongdoing. But it does not fulfil reconciliation’s final criteria of resolve to refrain from subsequent transgressions. What is needed to fulfil this criterion, is an acknowledgement of enduring rights. The Treaty of Waitangi shows that such acknowledgements may be made, but changing political circumstances and changing political values, mean that the nature and scope of those rights are routinely contested and perpetually reasserted. Recognition means that although Indigenous people are not assured of being on the most influential side of any public

208

D. O’SULLIVAN

debate, it does mean that the same people are less likely to find themselves always on the losing side. This ultimately depends, however, on the strength of public institutions to provide forums for the expression and contestation of ideas. In particular, the presence of public institutions established explicitly to ensure Indigenous voice. In New Zealand, the Waitangi Tribunal is a particular example, routinely chaired by a M¯aori judge and ordinarily comprising an equal number of M¯aori and other citizens. Its capacity to hear alleged breaches of the Treaty by any M¯aori person or any M¯aori group, ensures that the Treaty’s fundamental promises may always be asserted in specific contexts and with the Tribunal’s recommendations often, though not always, contributing to policy change. How public institutions respond to the claims of prior occupancy and to the claims of a non-colonial politics tests recognition’s influence, as does the extent to which their operations are consistent with the fundamental presumption of human equality. When public institutions assume cultures that are non-Indigenous, they affirm the greater political worthiness of some citizens over others. Some citizens are better able to see public institutions serving their interests, and one’s indigeneity may then become a democratic disability. Recognition, in contrast, gives effect to Indigenous agency. It means that politics may transcend a coloniser/colonised binary. It allows policy success and failure to be measured through frameworks of fundamental equality, with Indigenous conceptions of what it means to be fully human leading a life of personal value, providing a distinctive benchmark for assessment. Yet, as this book has shown, some Indigenous scholars argue that recognition is neither a just nor transformative politics. That it is a state centred quest for the appearance of moral legitimacy, but based only on the symbolic noting of prior occupancy. There is an accompanying argument that recognition cannot involve the state approaching an Indigenous nation as its equal because that would be to deny colonialism’s essential presumption of the coloniser’s greater moral worth. Recognition cannot, therefore, admit the right to self-determination, meaning that self-determination is a right that can be exercised only within an independent and isolated Indigenous nation. This book’s alternative argument is that there is at least transformative potential within discourses of recognition because they do, in fact, raise reimagining sovereignty as a social contract. Recognition’s limit for Indigenous political authority is that the state is inevitably the stronger

9

CONCLUSION

209

party in working out the political relationship. When the Indigenous population is a significant minority, as it is in Australia, non-Indigenous society may by weight of numbers limit the scope for Indigenous participation. In New Zealand, in contrast, the M¯aori population, at around 15% of the total, is large enough to matter. When public services like education and health do not work for M¯aori as well as they work for other citizens, there is an impact on the whole community. New Zealand’s economic strength, for example, requires a well-educated and healthy M¯aori population. It requires that M¯aori business performs well, and that M¯aori assets make their strongest possible contribution to national wealth. Recognition, through the honouring of existing treaties or the conclusion of new ones, is a fundamental challenge to the colonial character of the state. It questions the state’s moral legitimacy as a colonial entity. A radically transformative politics could follow. But it is not guaranteed, and recognition is capable of reduction to the superficially symbolic acknowledgement by the state that ‘you were here first’ as a statement of fact, but not as a statement of political significance. Nevertheless, it is true that in Australia, even as a general and non-specific idea, recognition has fostered an important political discourse. It has provided a framework for Indigenous people to assert expectations beyond the symbolic and, although, the Commonwealth has so far rejected the idea of a guaranteed Voice to parliament, the argument is one that is likely to remain prosecuted with conviction, precisely because of its potential to help democracy to protect the freedom and opportunities for influence of all and not just some people. Treaties could reinforce these presumptions, establish the terms of Indigenous independence, and as has occurred in New Zealand, provide a framework for responding to previous transgressions of justice. Treaties may also set the terms of association between the state and Indigenous nations to mitigate against further contraventions of self-determination as a right that belongs to Indigenous peoples as much as it belongs to anybody else. Recognition is a politics of potential, but not a guarantee. For some it asks too much and for others not enough. For some, the injustice of colonialism is beyond rectification, while for others it needs no modification because Indigenous location on the state’s periphery is not fundamentally unjust. But in between these extremes, this book has shown that approaching politics with the expectation of influence and authority is both possible and reasonable.

Index

A Aboriginal and Torres Strait Islander Social Justice Commissioner, 144 Aboriginal Community Controlled Health Services (ACCHOs), 58, 155, 156 Aboriginals Protection and Restriction of the Sale of Opium Act 1897 , 5 Abuse in Care, Royal Commission of Inquiry, 168 Active protection and partnership, 162 ACT party, 189 Adani coal mine, 91 Advisory Group, 145 Alaska, 171 Alaska Claims Settlement Act 1971, 171 Anderson, Ian, 180 Anglican missionaries, 8 Anishinabe, 85 Assimilation, 57, 65, 67, 70, 89, 131, 134 Assimilationist, 58, 71, 83, 89

Audit Office, 142 Australia, 3, 10, 12–14, 16, 18, 19, 21, 22, 29, 30, 33, 34, 36, 39, 40, 58, 62, 63, 66, 76, 79, 81, 84, 89, 90, 101, 103, 108, 110, 117, 120, 126, 138, 154, 160, 163, 168, 180, 182, 185, 186, 194, 197, 204–207, 209 Australian, 4, 10, 16, 18, 20, 21, 45, 70, 78, 95, 102, 118, 129, 154, 157, 180, 194, 206 Australian Constitution, 203 Australian Indigenous Doctors’ Association, 144 Australian Institute of Health and Welfare, 156 Australian Medical Association, 154 Australian National Audit Office, 141, 145 Australian Nursing and Midwifery Board’s Code, 185 Australian Senate, 2 Australian treaty, 45

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2021 D. O’Sullivan, Sharing the Sovereign: Indigenous Peoples, Recognition, Treaties and the State, https://doi.org/10.1007/978-981-33-4172-2

211

212

INDEX

B Barnett, Colin, 96 Barton, Edmund, 3 Barunga, 7, 94 Barunga Statement, 7, 8 Bird, Pem, 189 Black Diggers, 5 British Columbia, 97, 98, 100, 101, 183 British Columbian treaties, 97 British Crown, 4, 8, 9, 18–20, 22, 34, 54, 59, 60, 62, 76, 84, 85, 87, 88, 103, 107–114, 117–119, 121, 123, 126, 153, 157–166, 170, 171, 173, 174, 186, 191, 192, 199, 204 British Parliament, 60 British settlement, 4, 87, 101, 205 Buthera Agreement, 91–93 C Cabinet Office Circular, 114 Canada, 19, 21, 36, 45, 58, 66, 68, 69, 75, 87–89, 97, 100, 101, 103, 117, 126, 130, 168, 183, 206 Canada Act 1982, 90 Canada Land Company, 88 Canadian, 42, 63, 75, 88, 89, 108, 118, 153 Canadian Association of Social Workers, 185 Canadian context, 3 Canadian historical treaties, 76 Canadian modern treaties, 79 Canadian treaty-making, 4 Canadian Truth and Reconciliation Commission, 77, 80 Cape York Land Council, 139 Catalonia, 137 Charter schools, 189, 190 Chief Justice Prendergast, 60

Chiefs of the United Tribes of New Zealand, 60, 103 Chippewa Indians’ Incorporation, 65 Circular, 114 Citizenship, 4–7, 13, 14, 17–19, 21, 28, 31, 32, 36, 37, 41, 48, 53, 54, 56, 57, 62, 64–71, 75, 76, 88, 89, 92, 96, 100, 107–109, 112, 116–119, 121, 122, 126, 137, 138, 154, 159, 162, 169, 172, 187, 190–192, 194, 199, 205, 206 Closing the Gap, 141, 144 Closing the Gap in Indigenous Disadvantage, 140 Colonialism, 16, 18, 31, 32, 34, 37–44, 46–48, 55, 58, 59, 65, 66, 81, 83, 85, 87, 90, 93, 97, 100, 101, 107, 109, 117, 122, 129–132, 134–137, 139, 155, 156, 163, 182, 194, 204, 206, 208, 209 Colonisation, 13, 27, 47, 55, 56, 158, 196, 198 Common good, 84 Commonwealth, 4, 6, 8, 80, 81, 91, 95, 140, 144, 186, 209 Commonwealth Constitution, 1, 28, 45 Commonwealth of Australia, 3, 4, 6 Congress of Aboriginal and Torres Strait Islander Nurses, 144 Congress of Australia’s First Peoples, 141 Constitution, 1, 4–6, 10, 11, 33, 68, 100, 182 Constitutional Arrangements Committee of the House of Representatives, 118 Contra preferentum, 8 Cook Inlet Region Inc. Tribal Authority, 171

INDEX

Cook, Roger, 96 Council, 2 Council of Australian Governments, 140 Court of Appeal, 111–113, 118, 119 Critical Tiriti Analysis, 148 Crown sovereignty, 45, 60, 68, 112 D Davis, Megan, 30 Deakin, Alfred, 3 Declaration of Independence, 60 Declaration on the Rights of Indigenous Peoples, 29, 30, 33, 45, 55, 91, 134, 137, 146, 155, 168, 173, 174, 199 Democracy, 38, 54, 89, 93, 124, 137, 157, 181, 194, 203, 209 Department of Health and Ageing, 145 Department of Native Affairs, 182 Differentiated citizenship, 15, 66, 67, 135, 140, 170 Differentiated liberal citizenship, 32, 58, 67, 69, 89, 124, 140 District Health Boards, 159, 163, 164 District M¯aori Councils, 167 Duty of compromise, 113 F Family Court, 119, 167 Federal Court, 88 Federal Court of Canada, 88 Finland, 13 First Fleet, 2 First Nation governments, 102 First Nations, 4, 16, 84, 85, 87, 88, 97, 101, 102, 180, 183–185 First Peoples’ Assembly, 95 First World War, 5 Fraser, Malcolm, 6

213

Freedom Ride, 5

G Gillard, Julia, 188 Grandmothers Against Removals, 168 Guaranteed representation in parliament, 205

H Hawke, Bob, 6, 7 Health and Hospitals Reform Commission, 21 Health Authority, 171 High Court, 35, 205 High Court of Australia, 4, 78, 139 High Court of New Zealand, 116 Honour of the Crown, 60, 88, 119 Howard Government, 6, 11 Howard, John, 6, 10, 11, 81, 121 Human Rights and Equal Opportunities Commission, 77, 121 Huy-ay-aht First Nations, 100

I Independent M¯aori Statutory Boards, 159 Indian Act , 65 Indian Act 1876, 40 Indian Citizenship Act 1824, 66 Indigenous Advancement Strategy, 141, 142, 197 Indigenous Dentists’ Association of Australia, 144 Indigenous Health Equity Statement of Intent, 144 Indigenous voice, 157 International convention on the elimination of all forms of racial discrimination, 7

214

INDEX

International covenant on civil and political rights, 7 International covenant on economic, social and cultural rights, 7

J Just terms of association, 8, 9, 27, 43, 55, 56, 62, 77, 82, 90, 95, 101, 109, 118, 121, 124, 131

K Kalaringi, 94 Kawanatanga, 62, 109, 113, 121–123, 125, 173, 191, 192 Kohanga reo, 187 Kura kapuapa M¯aori, 187

L Letters Patent, 60, 61 Liberal citizenship, 66 Liberal democracy, 13–15, 32, 42, 46, 70, 81, 112, 180, 184, 198 Liberalism, 28, 29, 38, 42, 43, 67, 70, 130–132, 135, 138 Liberal political theory, 27, 29, 31, 38, 43, 108, 109, 175 Liberal theory, 29 Liberal theory of indigeneity, 14, 15, 65, 109, 196, 207

M Maa Nulth Treaty, 100 Mabo, 78 Makarrata, 2, 16, 18, 75–77, 79, 81, 82, 101, 182 Makarrata Commission, 18, 76, 79, 82, 90, 135, 196, 203 Mallard, Trevor, 108 Mana whenua, 164

Mansell, Michael, 78 M¯ aori Affairs Act 1953, 110 M¯aori constitutionalism, 43 M¯ aori Fisheries Act 2004, 123 M¯aori Health Authority, 167, 170, 172, 173, 205 M¯aori Health Care Agency, 159 M¯aori Health Purchasing Authority, 173 M¯ aori Language Act 1987 , 122 M¯aori party, 189 M¯aori representation in parliament, 33, 70 M¯aori seats in parliament, 3, 12, 13, 21, 123, 138, 198 M¯ aori Trustee Act 1953, 110 Marshall, Steven, 93 McKay, Justice, 111 Minister for Aboriginal Affairs, 95 Ministerial Stakeholder Advisory Group, 145 Ministry of M¯aori Development, 167 Modern Canadian treaties, 76, 96, 97, 101 Modern treaties, 88, 97, 98, 101 Moral courage, 22, 179, 183–185, 190, 198, 199 Morrison, Scott, 70 Mutual benefit, 113

N NAPLAN (National Assessment Program – Numeracy and Literacy), 141 Narungga Nation, 92 Narungga Nation Aboriginal Corporation, 92 National Aboriginal and Torres Strait Islander Health Plan (NATSIHP), 145–148, 155, 156, 186

INDEX

National Aboriginal and Torres Strait Islander Health Workers’ Association, 141 National Aboriginal and Torres Strait Islander Legal Services, 141 National Aboriginal Community Controlled Health Organisation, 141, 144, 145 National Aboriginal Conference, 6 National Congress of Australia’s First Peoples, 145 National Health and Hospitals Reform Commission, 172 National Health and Medical Research Council, 185, 186 National Health Leadership Forum, 145 National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, 77 National party, 189 Native schools, 89, 186 Native title, 36, 40, 41, 80, 91, 139 Native Title Act 1993, 40, 41, 96 New South Wales, 188 New Zealand, 3, 8, 14, 16, 19–21, 33, 45, 55, 57, 58, 62, 65, 66, 75, 79, 84, 88–91, 96, 100, 101, 109, 110, 116, 130, 134, 139, 153, 154, 163, 166, 168, 172, 179, 182, 186, 187, 197, 199, 205, 206, 209 New Zealand charter schools, 206 New Zealand Court of Appeal, 111 New Zealand government, 108 New Zealand Health and Disability Act 2000, 166 New Zealand M¯aori Council, 108, 110, 111, 159

215

New Zealand Public Health and Disability Act 2000, 123, 157, 158, 164 New Zealand Supreme Court, 60 Ngata, Apirana, 108 Ngati Kahungunu, 168 Nisga’a nation, 98 Nisga’a Treaty, 98 Noongar Agreement, 96 Noongar nation, 96 Northern Land Council, 94 Northern Territory, 7, 19, 68, 76, 80, 91, 93, 94, 188 Northern Territory Treaty Commission, 94 Norway, 13 NUKA model, 171 NUKA System of Care, 21, 171, 172 O Oranga Tamariki, 167, 169 P Palmer, Matthew, 116 Participatory parity, 12, 14, 20, 21, 134, 138, 148, 149 Partnership principle, 112 Peters, Winston, 190 Petroleum Act 1937 , 110 Pluralism, 20, 64, 65, 130–133, 136, 139, 149 Principle of active protection, 113 Principle of mutual benefit, 113 Principle of partnership, 163 Principle of reciprocity, 113 Prior occupancy, 7, 12, 13, 17, 27, 28, 38, 68, 80, 118, 131, 137–139, 149, 205, 208 Proclamation, 85 Protector, 5 Protector of Aborigines, 5

216

INDEX

Public sovereignty, 126 Public Works Act 1928, 110

Q Québec, 137 Queensland, 5, 80, 91 Queensland Elections Act 1885, 5

R Rangatiratanga, 19, 61, 107, 109, 112–115, 118, 119, 121–123, 125, 126, 158–160, 162, 165, 169, 170, 180, 191–193, 199, 204–206 Recognition, 11–17, 20, 22, 27–41, 44–48, 53–57, 59, 62, 68, 70, 71, 75–77, 79, 87, 91, 96, 101–103, 112, 126, 129, 130, 136, 149, 162, 163, 187, 199, 203, 204, 207–209 Reconciliation, 18, 42, 45, 75–82, 94, 101–103, 197, 207 Referendum Council, 1, 11, 18, 76, 79, 81, 203, 204 Residential schools, 89 Resurgence, 42, 43 Returned Services League, 5 Royal Commission into Aboriginal Deaths in Custody, 78 Royal Proclamation of 1763, 84 Rudd Government, 21

S Sami Parliaments, 13 Scotland, 137 Second World War, 5 Self-determination, 7, 8, 11, 13, 16, 17, 21, 22, 28–31, 33–35, 37–39, 42–48, 55, 57, 62, 63, 66–70, 78, 82, 89–91, 95–98,

102, 112, 117, 125, 126, 130, 132, 134, 137–140, 146, 156, 158–160, 162–165, 168, 170, 180–183, 186–188, 192–196, 204, 208, 209 Senate Standing Committee on Constitutional and Legal Affairs, 6, 82 Shorten, Bill, 1 Social contract, 13, 17, 19, 20, 27, 53, 75, 76, 83, 84, 87, 89, 90, 101, 102, 107, 126, 154 Social determinants, 146, 166 South Australia, 76, 91–93 South West Aboriginal Land and Sea Council, 96 South West Native Title Settlement, 96 Sovereignty, 2, 4, 6–8, 13, 17–19, 27, 28, 30, 32, 34, 35, 38, 39, 44, 46, 48, 53–68, 70, 71, 75, 76, 80, 82, 84, 87–89, 92, 94, 95, 97, 102, 103, 107, 111–114, 118, 120, 125, 149, 163, 173, 174, 179, 180, 194, 196, 198, 199, 205, 206, 208 Stolen generations, 78, 79, 89, 168, 182 Supersession thesis, 37 Supreme Court, 60, 110, 119 Supreme Court of Canada, 88, 97, 118 Swainson, William, 60 Swampy Cree, 85 Sweden, 13 Sydney Morning Herald, 2 T Tasmania, 4 Tawhiwhirangi, Iritana, 190 Te Kotahitanga, 33, 34, 187 Te Puni Kokiri, 167

INDEX

Terra nullius , 4, 14, 34, 36, 58, 102, 205 Te Ture Whenua M¯ aori Act 1993, 122 Theory of labour (John Locke), 4 Thorpe, Lidia, 2 Toby Curtis, 190 Tony Rundle, 78 Treaty(ies), 2, 3, 6–10, 12–14, 17–22, 35, 39, 45, 48, 55, 56, 60–62, 65, 68, 70, 71, 75, 76, 78, 80–82, 84, 86–91, 93–98, 100–103, 107, 108, 110–114, 116–123, 125, 126, 129, 130, 135, 149, 153, 154, 157, 158, 161, 164–166, 173, 174, 182, 186, 191, 195, 199, 204, 207–209 Treaty Commission, 93 Treaty negotiations, 19, 76, 88, 90, 94, 95, 101 Treaty of Niagara, 84 Treaty of Waitangi, 3, 8, 12, 16, 18–20, 29, 32, 45, 54, 55, 59, 70, 75, 76, 79, 84, 88, 91, 96, 101, 103, 107, 109, 110, 116, 118, 119, 126, 133, 137, 138, 148, 149, 154, 157, 164, 170, 175, 186, 193, 199, 204–207 Treaty of Waitangi Act 1975, 61, 111, 121 Treaty of Waitangi Court, 119 Treaty principles, 20, 108, 111, 114, 126, 161, 165 principle of active protection, 161, 165 principle of equity, 161, 162, 165 principle of options, 161, 162, 165 principle of partnership, 161, 165 Treaty principles of partnership, active protection, reciprocity and equity, 190 Treaty settlements, 88, 90, 100, 109

217

Treaty’s Preamble, 159 Truth and Reconciliation Commission, 183 Tuhoe, 173, 174 Turnbull, Malcolm, 1, 70

U Uluru Statement from the Heart , 1, 6, 13, 16, 32, 64, 65, 76, 94, 196 UN Declaration, 183 United Nations, 199 United Nations Declaration on the Rights of Indigenous Peoples, 94 United Nations’ Permanent Forum on Indigenous Issues, 182 United States, 3, 62, 189 Universal declaration of human rights, 7

V Victoria, 19, 76, 80, 91, 93, 95 Victorian Green party, 2 Victorian parliament, 68 Voice, 1, 2, 4, 6, 8, 12, 13, 20, 21, 33, 35, 39, 48, 61, 70, 130, 138, 153, 155, 179, 180, 189, 197, 198, 204, 205, 209 Voice to parliament, 14, 130, 157, 182, 197, 203 Voice to the Victorian Parliament, 95

W Waikato Raupatu Claims Settlement Act 1995, 100 Waitangi Tribunal, 9, 18, 20–22, 54, 59, 62, 84, 108, 111–114, 117, 119–123, 125, 126, 134, 153, 157–167, 170, 171, 179, 186, 190, 191, 194, 197, 208 Western Australia, 5, 76, 91, 96

218

INDEX

White Australia policy, 3 Wik, 35, 78, 139 Wild Rivers Act 2005, 139 Williams, Justice, 60

Y Yorta Yorta Aboriginal Corporation, 95