26.06.04
AGENDA
GISELLE BYRNES
Senior Lecturer, History – Victoria University
Interviewed by SIMON DALLOW
This transcript is copyright to Front Page Ltd but may be used provided acknowledgement is given to Agenda and TVOne.
PART 1
SIMON
In 1975 our parliament passed the Treaty of Waitangi Act which established the Waitangi Tribunal and eventually set in motion the whole Waitangi claims process. The original legislation called on the Tribunal to quote - 'make recommendations on claims relating to the practical application of the Treaty and to determine whether certain matters are inconsistent with the principles of the Treaty'. But how has the Tribunal interpreted that brief? Victoria University of Wellington Senior Lecturer in History, Giselle Byrnes has studied every decision that Tribunal's released and she's concluded that its account of New Zealand history is a worthy but ultimately flawed experiment and she's with me now.
In the end you called it a noble but ultimately flawed experiment, why?
GISELLE
I used the term noble because I think the motivations and the intentions of the whole process are honourable and ought to be supported but ultimately I think that some of the work that’s been published by the Tribunal and its reports has serious problems if you look at that work as academic history. Now I argue in the book that many of those problems are linked back to the statutory jurisdiction of the Tribunal and the Tribunal has to work within those limits.
SIMON
Well let's look at the statutory jurisdiction, how does the legislation define the Tribunal's role, what's its job supposed to be?
GISELLE
Its job is to accept claims from Maori that they have been prejudicially affected by inaction or omission of the Crown and it has to ascertain whether or not that claim is valid, it has to interpret the Treaty, interpret Treaty principles, but it also has to prevent further prejudice from happening in the future, so the Tribunal I argue in the book has a past focus in looking at history but also a present based focus and a future orientation.
SIMON
But when you say it tries to prevent this happening in the future, it's only got a recommendatory role hasn’t it?
GISELLE
It has, it only has a recommendatory role to government, it has very few teeth in that respect.
SIMON
How has the Tribunal approached the Treaty in terms of – how does it deal with the conflict inherent between the English and Maori versions?
GISELLE
From the mid 80s through to the late 1990s the Tribunal has been increasingly giving priority to the Maori version of the Treaty over the English version and of course in the Maori version of the Treaty Maori only ceded governorship to the British Crown but they retained sovereignty or Rangatiratanga.
SIMON
How does the Tribunal get the mandate to do that though, where is that, is that in the legislation?
GISELLE
Well that’s a traditional Maori interpretation and understanding of the Treaty compact as an ongoing social contract, but it's also been following international law, rules at international law which give priority to treaties that are made with indigenous peoples in the language of those indigenous peoples.
SIMON
So the indigenous version takes priority?
GISELLE
It does, yes.
SIMON
How does that then impact on its objectivity?
GISELLE
Well I argue in the book that objectivity has a very small role in tribunal history and this is because the history, that is the tribunal reports are very political, they are part of a political process, a treaty settlement process, they effect an outcome or they potentially effect an settlement so they have to be political, they have to be written to an audience or a government of the day that is receptive that’s going to listen to them.
SIMON
Let's look at the other aspect of the Treaty arrangement, the Treaty principles, we often hear talk of Treaty principles, how does the Tribunal interpret what they are?
GISELLE
Well the Tribunal has through its successive reports since the mid 1980s especially stressed principles of mutual co-operation, of respect, it's been very reluctant to actually pin them down as it were, but if you look at the Tribunal reports you can see a repetition of these principles being enunciated.
SIMON
What are they, how would you summarise them?
GISELLE
The principles of mutual respect, of co-operation, of …
SIMON
Is there a partnership? Is partnership a principle?
GISELLE
Partnership is a big principle yes.
SIMON
Equal partnership?
GISELLE
Well if you read some of the Tribunal reports in the late 1990s and mid 90s, they emphasise the idea of Maori sovereignty or aboriginal autonomy which is a pretty strident kind of thing to say.
SIMON
So what you’re saying is there's not an equal partnership as far as the Tribunal is concerned, in terms of its recommendations anyway, is it trying to redress an imbalance?
GISELLE
It has been yes, through its history, it has been trying to rectify the imbalance, Maori have been written out of history.
SIMON
So history has been pro Pakeha? Pro Crown?
GISELLE
Absolutely for the past 160 years.
SIMON
And it sees its role in a remedial fashion does it?
GISELLE
I think there is a lot of that going on.
SIMON
Let's go back and look at what you call the Tribunal is what you call presentist, what exactly do you mean by presentist?
GISELLE
If a history is presentist it's written with the concerns of the present being the overwhelming focus, I mean all history's written with the concerns of the present in mind because the questions that we put to the past come out of the present but when the present day issues and contemporary issues become the overwhelming feature of that historical inquiry or that narrative then it somehow distorts that narrative, it distorts the end product, and that’s what I mean by presentism it's this focus with looking at present problems and looking to the past to find causes for those problems.
SIMON
So applying today's standards to past actions?
GISELLE
Absolutely yes.
SIMON
How does that Tribunal determine what happened then when there are conflicting accounts of what happened?
GISELLE
Well it operates as a semi judicial inquiry, it weighs up different sorts of evidence, it accepts both traditional Maori oral evidence as well as researched documentary evidence, and it weighs up on the balance of probability which is truthful, what happened in the past.
SIMON
So does it determine what we are going to believe as the truth going forward, is it establishing a truth for the future?
GISELLE
Well the Tribunal reports do come out with a conclusion, they have to make a recommendation to government so they have to come out with a truth, this is what happened in the past. A historian however looking at this is highly suspicious of this because of course we think that there are many truths.
SIMON
And does the Tribunal treat Maori and Pakeha equally?
GISELLE
No, is the short answer. In the Tribunal's historical narratives Maori characters and agents are fleshed out much more than European characters are, but again this can be explained by reference to the statutory obligations of the Tribunal. Maori and the Crown must be at the centre of those narratives, that’s the centre of the inquiry.
SIMON
Doesn’t that then effectively from what you’re saying that – is the Tribunal re-writing history with an agenda?
GISELLE
Yes it is, yes.
SIMON
What's that agenda?
GISELLE
But that agenda – well the agenda is different for every single claim because the Tribunal has to respond to the issues that are raised by the claimants in the Statement of Claim, but the Tribunal's also given the mandate if you like of applying Treaty principles but also of interpreting what those principles are, and what the contemporary relevance of the Treaty is.
SIMON
You talk in the book of the Tribunal writing a liberation history, what do you mean there?
GISELLE
I've coined that term really to describe the efforts of the Tribunal to write Maori back into the history of New Zealand. Maori characters in many of the Tribunal's histories are active agents, they're not passive victims of colonisation but they actually, they protest, they have petitions before governments, they are very active.
SIMON
And that comes from the oral history or the written Pakeha history?
GISELLE
It comes from both of those sources actually, but the point of all that is that Maori are shown as being continuing this theme of liberation, so they're not simply lying over and being victims.
SIMON
Does all this raise the risk of creating other grievances, I mean if you've got a pro Maori perspective aren’t you then possibly creating further problems down the track?
GISELLE
I think we've had a 160 years of history being written the other way in a sense, I think this is balancing up the historical record.
SIMON
Thank you very much, we'll be coming back after the break to talk more with Giselle Byrnes and the results of her book, The Waitangi Tribunal and New Zealand History.
PART 2
SIMON
Welcome back, we're with Giselle Byrnes discussing the effects of her book The Waitangi Tribunal and New Zealand History. Giselle does the Tribunal have a vision of what it believes is our national identity or what it wants it to be?
GISELLE
Well that’s an interesting question because the concept of national identity's not really tackled in the Tribunal reports but it's implicitly there. Every time the Tribunal mentions Maori sovereignty, or as it terms it in many reports aboriginal autonomy, it invokes the concept of national identity, and this is one of the interesting things I've found is that especially in the 1990s and particularly with a report like the Taranaki report published in 96 you have a lot of talk about aboriginal autonomy, Maori sovereignty, but at the same time the Tribunal never really reconciles how Maori sovereignty would work in practice.
SIMON
You’re talking about the evolution aren’t you of judgements and the Taranaki report was really vital here. Didn’t the Tribunal initially start off promoting bi-culturalism, when did it change and how did that happen?
GISELLE
Absolutely yes, and if you look at the reports in the late 1980s a bi-cultural perspective was very much being pushed.
SIMON
That’s the mutual accommodation approach?
GISELLE
Mutual accommodation absolutely and the findings and the recommendations in those early reports, looking at a report like Orakei in 1987 for instance were really looking at how Maori and Pakeha would live together and what kind of reconciliation we could make. By the time we've got to 1996 and the Taranaki report is kind of the high point of this you do get these expressions about aboriginal autonomy, Maori sovereignty which is quite a shift.
SIMON
Was that a gradual shift or was there a catalyst for that change?
GISELLE
It was gradual but the interesting thing is that by the reports of 1999 the Tribunal seems to have backed away from making those kind of bold statements.
SIMON
Is that some sort of reaction to the inflammatory effect of the holocaust statement in the Taranaki report?
GISELLE
Possibly, I think that report had a lot of – the language of that report was very inflammatory.
SIMON
It invoked an almost Brash like backlash.
GISELLE
It did, it did, and I sense that the Tribunal pulled back from that and you can see that in the later reports.
SIMON
Does this all mean then that the Tribunal – what is it, is it a judicial body or is it a political social activist – what is it?
GISELLE
The Tribunal is a commission of inquiry – the interesting thing is it's not a limited term commission of inquiry so there's a question mark over its life span really, but its job really is to – as I said before to accept claims, to ascertain whether those claims are valid on the balance of the evidence that comes before the Tribunal when they look at all different sorts of evidence and then to ..
SIMON
They follow a very formal judicial role doing that.
GISELLE
They do, they follow a kind of semi judicial procedure, but legal processes are very dominant in it, the role of cross examination is very dominant.
SIMON
How does it affect the voracity of the history or the truth of the history that it comes up with?
GISELLE
Well, that’s interesting because as a historian, I think it's a rather odd way to try and get to the truth through a process of cross examination and I think that’s one of the points where in this process history and law kind of come up against each other.
SIMON
Is there a more practical way from your perspective? I mean you have to have a way to get there, I know it's not ideal but what's better?
GISELLE
That’s right, I think more emphasis could be placed on traditional evidence, on Maori oral evidence, and giving or respecting historical methodology in that process.
SIMON
You mentioned the life span of the Tribunal, as you know many political parties would like to see a limit on that, what do you see as the life span of it, what is the natural evolution?
GISELLE
Well the Tribunal itself has said that it hopes to have dealt with all the historical claims within a few years perhaps five, perhaps ten.
SIMON
Is that viable?
GISELLE
If it had more resources yes I think so.
SIMON
So it isn't viable as it currently stands?
GISELLE
I think so, well it could always do with more funding and more resourcing, but having said that there's still contemporary claims. Now if the Treaty is an ongoing social contract as Maori have always argued and as I understand this government has accepted that interpretation then it follows quite logically that there should always be an institution like the Tribunal which is there to keep a check on possible future Crown breaches of the Treaty partnership.
SIMON
If it is the ongoing social contract what are the obligations upon Maori?
GISELLE
To behave as a respectable Treaty partner, to honour those same obligations that the Crown does, the ideas of partnership, the idea of good faith, the ideas of mutual respect.
SIMON
Is the Tribunal worth persevering with – you know we talk about life span, is it worth going on with and if so what would you change to make it more effective?
GISELLE
I think yes it is definitely worth sticking with. I mean in my book I'm highly critical of the kind of history that the Tribunal has been publishing but I think there is a real need for the Waitangi Tribunal. I mean as other historians have pointed out, if we didn’t have the Waitangi Tribunal then possibly we would have a position of great social and civil disorder and unrest. In a sense it's provided a safety valve for Maori, it's a place for them to take their grievances, long held grievances against the Crown, and have it heard by the Waitangi Tribunal. I also think that the Tribunal is indicative of a broader kind of process that we're going through at the moment which is an exploration of our colonial past, a purging of the ghosts of the past in order to move on really, and the Tribunal plays a vital role in that.
SIMON
Giselle Byrnes thank you very very much indeed for joining us on the programme today.
AKILISI POHIVA
TONGAN MP
SIMON
Now Parliament's Foreign Affairs Select Committee is conducting an inquiry into the relationship between New Zealand and Tonga, and this week it received a startling prediction from Akilisi Pohiva that violence could break out in the kingdom if the King did not agree to further democratic reforms. Mr Pohiva is one of just nine elected MPs in a chamber of 30. I spoke to him in Auckland yesterday.
SIMON
Mr Pohiva, if democracy is not advanced in Tonga how fearful are you of violence?
MR POHIVA
Well I made it clear to the members of the Select Committee yesterday that my main fear is that someone sometimes might come along and tell the King and the nobles what they should do. I'm having this feeling only because we have attempted now for several years to bring about democracy to our country using all these lawful means and nothing happen.
SIMON
Are you making any progress whatsoever?
MR POHIVA
Oh yes, so far we have been able to you know raise the consciousness of the public and that’s where we started from. We have to educate the general public, make sure that they understand what democracy is, how democracy works, that is the first step and I think we have done that.
SIMON
What's preventing you taking greater steps towards democracy?
MR POHIVA
Firstly there are still you know very conservative group in the country especially all the people and people who are close to the nobility.
SIMON
So traditionalists?
MR POHIVA
Yeah, and the monarchy, not only that but the senior people well educated people who are part of the bureaucracy of government they don’t really want to show up.
SIMON
Across the board then, across the whole country how strong among the people in Tonga is support for democracy?
MR POHIVA Well we haven't – there has been no survey or polls, public polls or referendum being taken but we always refer to the outcome of the elections during the past 18 years as an indication of how much support we have. This is the only indicator and this is why we are pushing, we have been pushing government for a referendum to be conducted, this is the only way we can really tell how much support we have.
SIMON So why has a referendum been refused?
MR POHIVA We put through to parliament proposals and motions requesting parliament for a referendum to be conducted but they were all refused.
SIMON What happens when the King eventually dies, will Tonga be able to remain stable.
MR POHIVA It still remains to be seen because some people say that there is a hope when the Crown Prince becomes King, but in my personal assessment, my personal view, I don’t see any hope at all.
SIMON Why not?
MR POHIVA Simply because of the fact that he is very much involved in business and he has been doing it for a long period of time and I don’t think it would be an easy thing for him to give up, to surrender his business to anybody to anyone so that he can take the throne. But to me he can't take both, he has to give up one to become the King in the country.
SIMON If he has this dual role in the eyes of the people does that mean that when he succeeds we can expect to see unrest?
MR POHIVA If there would be no change we expect civil unrest and violence in the country. When worse come to worst and no one comes out with some sort of options for the existing system people will be forced to take the law into their own hands.
SIMON
Do you see this as inevitable?
MR POHIVA
Well as I said it will happen if there is no way out for the people.
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