LESSONS FROM NEW ZEALAND: TOWARDS A BETTER WORKING RELATIONSHIP BETWEEN INDIGENOUS PEOPLES AND THE STATE

Abstract

I Introduction This paper examines the ways in which Maori are recognised through New Zealand’s legal and political institutions, and draws lessons that are applicable to the complex challenge of Indigenous constitutional recognition in Australia. 1 It argues that Indigenous recognition can occur through constitutional reform, but also through institutional and legislative reform: recognition could be a package of constitutional and other reforms. The New Zealand example demonstrates that Indigenous recognition seeks to address the functional, working relationship between Indigenous peoples and the state, to make it fairer than it has been in the past. It shows that Indigenous recognition can and should be practical and ongoing, rather than purely symbolic and static. The paper begins by providing a political and theoretical context to the current Australian recognition debate. It discusses the reaction to the Expert Panel’s recommendations, contextualises the relevant concepts including ‘recognition’, ‘symbolism’, ‘practicality’ and ‘fairness’ within the frame of a liberal democracy, and argues that Indigenous advocacy has always been for practical forms of constitutional recognition and constitutional guarantees. Part III draws impetus from former Prime Minister Tony Abbott’s comments about the Treaty of Waitangi in New Zealand and compares the constitutional histories of New Zealand and Australia. It explores the changing constitutional relationship between Indigenous peoples and the state in both nations through successful or attempted agreement-making and breached promises, and argues that Indigenous constitutional recognition in the contemporary Australian setting should arise out of genuine negotiation and agreement between Indigenous peoples and the state, to re-set the terms for a fairer future relationship. Part IV discusses New Zealand’s ongoing movement towards practical recognition of Maori through legislative and institutional reforms including the Maori Council, Waitangi Tribunal settlement mechanisms and the cultural recognition that has flowed therefrom, and Maori reserved parliamentary seats.