Dominic O'Sullivan: Equality, not uniformity, is the goal

COMMENT

Trevor Mallard's claim that "there is a myth that the Treaty of Waitangi gave Maori extra rights over and above those of other New Zealanders" was made within the context of a grossly oversimplified public debate over the Treaty and Maori policy.

It was also ironic, having been made at a time when the most significant right Maori are claiming is the basic right of access to the judicial system, which is severely limited by the Foreshore and Seabed Bill.

John Tamihere's contrary assertion that the Treaty "confers rights which are different to others" is a more useful position around which to discuss the place of the Treaty in a modern democracy.

Mr Mallard's claim that the "Treaty is both bigger and smaller than many people think" explains, however, the extent of oversimplification and ill-informed debate. It points to the distinguishing characteristic of Treaty policy debate - the tension among those who, from whatever position, understate or overstate the significance of the Treaty.

The Treaty legitimises Maori aspiration to self-determination. It, therefore, legitimises a Maori claim to different, but not superior, rights. The purpose of those rights is for Maori to exercise self-responsibility - the opportunity to make decisions for themselves against their own criteria and in pursuit of self-defined goals.

Further, it is the opportunity to take responsibility for one's successes and failures and to avoid passive reception of that which is determined by outsiders as best for Maori communities.

Self-determination is a different but equal expression of the citizenship rights, claimed by all because it is a right that many wish to pursue collectively and in their own cultural and political context.

Yet the relevance and usefulness of the Treaty to relationships between the Crown and Maori has sometimes been overstated, giving rise to legitimate public questioning. The nature and extent of references to the Treaty in some public documents and the strange claiming of Treaty responsibilities by non-Crown entities are examples.

Public suspicion of the Treaty draws legitimacy from interpretations of the problematic bicultural discourse that heavily influenced public policy during the 1980s and 1990s. The definition of biculturalism was imprecise and its implementation often ill-conceived, giving exalted status to the Treaty in contexts where it was not obviously relevant.

Nevertheless, attempts to reduce the Treaty's significance altogether rightly concern Maori. The limitation on Maori citizenship rights in the Foreshore and Seabed Bill is but one example of reasoned appeal to the Treaty as a moral force because it is as New Zealand citizens that Maori claim the right to participate in public decision-making - including the right of access to the judicial system, which the bill limits.

Maori claims to receive healthcare and education in their preferred cultural context, and the right to possess land and resources without fear of Government expropriation, are not claims to extra rights, but claims to the rights of citizenship.

Maori seek these rights of citizenship under Article 3 of the Treaty. They are not sought, as Don Brash's Orewa speech suggested, out of a belief in a "birthright to the upper hand" but out of a belief in a birthright to live as Maori citizens of New Zealand.

The Treaty also affirms rights of indigeneity. Citizenship and indigeneity are different but not exclusive, and one is not superior to the other. Indeed, for non-Maori the rights of indigeneity are irrelevant because they exist in a definite Maori cultural context.

Indigeneity is concerned with the right and opportunity to live as Maori: the right of access to language and culture, the right to preserve and develop resources as a community, not just as individuals.

The politics of indigeneity allow material progress to be viewed alongside cultural imperatives, which are most obviously intertwined in kura kaupapa Maori (schools that teach in Maori and, as far as possible, employ a Maori pedagogy), for example.

Indigeneity adds a purpose to formal education beyond the equipping of individuals to participate in society in the same way that all citizens might expect. Indigeneity requires education to prepare Maori to participate in Maori society. This is not relevant to non-Maori.

Yet such an approach to Maori education policy creates a tension between the liberal democratic state's emphasis on choice as a right of citizenship and the prospect that Maori might make choices inconsistent with the "one people", culturally empty view of New Zealand that informs much of the support for Dr Brash's Orewa speech.

The broadening of the focus of Treaty policy to include the implications of indigeneity, rather than just material disadvantage, helped to foster a fear that Maori might receive material privilege on the basis of race rather than need. A populist mythology to that end has emerged among those who deny a Maori expression of identity.

The insistence that the politics of indigeneity emphasise a Maori preferential access to healthcare, to education funding or to exclusive access to the foreshore and seabed has entered popular mythology - not because these extra rights are claimed by Maori but because it suits a fear-generating political agenda to encourage its emergence.

While Mr Mallard is correct in saying that the Treaty does not confer "extra" rights on Maori, it does confer the same right of access to the legal system as enjoyed by other citizens.

Indigeneity also has implications for the exercise of the wider rights of citizenship, which in many cases can properly be enjoyed by Maori in different, but not by implication superior, fashion to that of other citizens.

* Dr Dominic O'Sullivan is a research officer at the Maori Education Research Institute, University of Waikato.