Dominic O'Sullivan: Maori have a right to super city seats as first occupants

Councillor Paul Goldsmith's article "Separate seats based on race are the opposite of equality" presents a narrow, limiting conception of democracy and political representation.

The article illustrates a tension between worldwide indigenous claims to inherent political rights to representation and the idea of undifferentiated national citizenship, or "one law for all" as Don Brash put it.

For more than 100 years, in both parliamentary and local government elections, non-Maori voters have shown consistent unwillingness to elect Maori candidates. For Maori, democracy has become a process of exclusion based on a medieval understanding of a majority always being substantively right.

Yet democracy is supposed to be emancipatory and a check against the misuse of political power. Everybody should therefore be included in the political life of the community with no one group always finding itself on the losing side. One group's liberty should never be at the expense of another's. Thorough deliberation and the contestability of ideas is an essential characteristic of the democratic process which inevitably works best when it is inclusively structured.

Democracy's purpose is to mediate rather than mask differences and to manage, not dismiss, conflicting ideas. In other words, silencing minorities is not democracy's purpose. Recognising differences does not challenge individual rights. Individual identity must come from somewhere.

It is heavily shaped by culture and derives meaning from communal relationships. Differences in political identities contribute to the differences in ideas that democracy requires for its own effectiveness.

Some form of proportional representation is most likely to meet these understandings of democracy, which are also supported by arguments for the guaranteed representation of some groups but not others. Guaranteed representation is a way of recognising a group's "specialness", as Goldsmith puts it and, more substantively, their equality.

It is, however, first occupancy, or mana whenua, not race per se that justifies guaranteed representation. Auckland's local iwi never surrendered power and authority over their traditional lands and resources and can therefore make a fair and reasonable claim on the wider community for guaranteed representation as a way of protecting their role in the ongoing governance of the city.

Guaranteed representation also helps to protect iwi authority over their own affairs. For iwi, the protection of group rights to land and resources, for example, are essential elements of the right to culture, which is preliminary to the personal freedom that democracy is intended to secure.

Guaranteed inclusion is a way of making sure power is shared in the interests of social cohesion. Emphasis on individual rights in isolation from the collective offers no real prospect for securing comprehensive individual freedom or the certainty of equitable individual influence in political affairs.

Collective recognition is an important adjunct to individual citizenship because the collective experience of land and resource alienation gives a particular standing to local iwi. This two-tiered citizenship provides a way of reconciling citizenship's necessary regard for what societies hold in common and iwi preferences for maintaining their own political as well as cultural identities.

If it is mana whenua, not minority status, that creates the argument for guaranteed representation then there is actually no case for designated seats representing all Maori as the Royal Commission on Auckland Governance proposes. It is, for example, difficult to see what special representative claim a South Island Maori temporarily resident in Auckland might have beyond the right to vote in a general constituency.

Certainly, the claim cannot be equated to that of the descendants of Auckland's original occupants. There is, therefore, an argument for not proceeding with the election of members by all persons on the Maori parliamentary electoral roll, but for ensuring separate mana whenua representation for each of the two Auckland tribal groups - Ngati Whatua and Tainui.

As Goldsmith argues, however, the royal commission's recommended process for appointment of a mana whenua representative is problematic. Like the appointment process to any public body, transparency and guarantee of participation by all who are entitled to it is essential.

The criteria for entitlement to participate must be clear and protected in law. It must not be a lesser entitlement to that enjoyed by voters in general constituencies, and the process of appointment must be demonstrably accepted by the people.

The option for mana whenua representatives to be elected by secret ballot under the supervision of the city's returning officer ought to be fully explored for its transparency, simplicity and its assured provision of free and equal opportunity to participate.

Mana whenua representatives will participate equally in the governance of the whole city.

The royal commission, then, proposes two quite different forms of guaranteed representation. Maori seats based on race and mana whenua representation based on first occupancy. The rationale for the Maori seats in Parliament has always been first occupancy, not race.

It is unfortunate that neither the royal commission nor Paul Goldsmith have made the distinction. It is the difference between race and first occupancy that illuminates the difference between a chaotic politics of guaranteed multi-racial representation and fair and reasonable politics of inclusion.

* Dr Dominic O'Sullivan lectures in Indigenous Studies at Charles Sturt University, Australia. He has a PhD in political science from Waikato.