Thursday, March 22, 2018


The Australian Constitution and Indigenous Australians

Michael Legg

Excerpted from: Michael Legg, Indigenous Australians and International Law: Racial Discrimination, Genocide and Reparations, 20 Berkeley Journal of International Law 387-435, 393-397 (2002) (192 Footnotes)

The starting point for any consideration of Australia's treatment of its indigenous population is the Australian Constitution. The Constitution gives the Federal Parliament power to legislate for Indigenous Australians pursuant to section 51(xxvi), or what is colloquially known as, "the race power." Under the race power, Parliament has power to make laws with respect to: "The people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws."

In 1967, the Australian people passed a referendum amending section 51(xxvi) by deleting the words in italics. Prior to the referendum, only the States could legislate regarding Indigenous Australians. The force of international opinion in helping to foster the amendment was clearly expressed by the "Vote Yes Campaign," which stated that, "Australians are held collectively responsible for the treatment and conditions of the Aboriginal people by world opinion." The comments of the President of the Aborigines Advancement League that, "The image of Australia throughout the world is at stake. If it is not passed, Australia will be held up to ridicule," indicate that Indigenous Australians campaigning for the amendment recognized the force of international opinion.

On May 27, 1967, the Australian people as a nation, and in each of the six states, voted overwhelmingly to amend section 51(xxvi) and delete section 127 (which explicitly excluded Aborigines from the census). It was, and still is, the referendum that attracted the most support from voters of all the referenda in the history of Australia.

Since the amendment of section 51(xxvi), the High Court has had to interpret whether the race power authorizes laws prohibiting racial discrimination, establishing native title legislation, and, most recently, the validity of the Hindmarsh Island Bridge Act 1997 ("Bridge Act"). In doing so, the Court considered but did not have to decide whether section 51(xxvi) could be used for adverse discriminatory laws against Aboriginal people or could only be used in a beneficial manner. The Judge's opinions were largely dicta up until considering the Bridge Act as they chiefly relied on the external affairs power.

In Koowarta v. Bjelke-Petersen, the High Court rejected the Queensland Government's constitutional challenge to the enactment of Federal anti-racial discrimination legislation. Justice Wilson in dicta noted that:

The existence of racial barriers is repugnant to the ideals of any human society. In substance the preamble [of the International Convention on the Elimination of All Forms of Racial Discrimination] testifies to the view that it is essential to the peace and well-being of the international community that the laws of a community apply to all the members of that community regardless of race. In these days, one would not readily contemplate the use of the [race] power to the detriment of the people of a race.

Of the other judges that considered the race power, Justice Stephen saw the power as allowing laws which could be either benevolent or repressive, but commented that there was a new global concern for human rights and the suppression of racial discrimination. Justice Murphy interpreted the word "for" in section 51(xxvi) as meaning "for the benefit of." Chief Justice Gibbs felt that it would be a mistake to think that the race power could only be used for the protection of a particular race.

In The Commonwealth v. Tasmania (Tasmanian Dam case), the Court considered the Federal Parliament's ability to enact legislation to prevent a World Heritage listed piece of wilderness being flooded by the State of Tasmania damming the Franklin River. Justice Murphy spoke strongly for the race power being interpreted on the basis that the 1967 amendment took place so that Parliament could legislate for the maintenance, protection and advancement of the Aboriginal people, that is, for their benefit. Justice Brennan commented that the 1967 Referendum demonstrated "an affirmation of the will of the Australian people that the odious policies of oppression and neglect of Aboriginal citizens were to be at an end, and that the primary object of the power is beneficial." The dicta from Koowarta and the Tasmanian Dam case thus formed the precedent for the crucial case of Kartinyeri v. The Commonwealth (Hindmarsh Island Bridge case), where the race power was the central question.

In the Hindmarsh Island Bridge case, a group of the indigenous Ngarrindjeri people sought to prevent the construction of the Hindmarsh Island Bridge by invoking the Aboriginal and Torres Strait Island Heritage Protection Act 1984 (Cth) (Heritage Protection Act) to protect a sacred site. The Heritage Protection Act gave the Minister power to make declarations that preserved significant Aboriginal areas and objects. The Bridge Act prevented the Minister from declaring the area associated with the Hindmarsh Island Bridge.

The question for the High court was whether the Bridge Act was invalid because it was not supported by the race power or any other head of power. In the Hindmarsh Island Bridge case, the High Court found that the passing of the Bridge Act, which amended the Heritage Protection Act, was a valid exercise of power.

Chief Justice Brennan and Justice McHugh held in a joint judgment that, because Parliament had the power to enact the Heritage Protection Act under section 51(xxvi) of the Constitution, it had power to amend or restrict the operation of that same Act. That, they held, was what the Bridge Act did. They reasoned that "the power to make laws includes a power to unmake them," or repeal them.

Justice Gummow and Justice Hayne found that the enactment of the Bridge Act was a valid use of the race power. They found that the power could support laws that conferred both benefits and disadvantages. It was for Parliament to determine what measures were necessary for a particular race. The very nature of the power was discriminatory in that the requirements for special laws meant that a particular race would be subject to a law that had a differential operation on them as opposed to other races. Parliament's ability to make such a decision may be limited where the law is enacted in manifest abuse of the power or is in conflict with the rule of law. Justice Gummow and Justice Hayne agreed with Chief Justice Brennan and Justice McHugh on the operation of the Bridge Act on the Heritage Protection Act.

Justice Gaudron decided the question on the same basis as Chief Justice Brennan and Justice McHugh. The judgment reviewed both the original constitutional conventions that produced the Constitution as well as the surrounding materials from the 1967 referendum. In conducting this review, Justice Gaudron pointed out that the original intent of the race power was to authorize Parliament to make laws that discriminated against people of colored and alien races. Justice Gaudron considered that the effect of the 1967 referendum, as a minimalist change, was only to place Aboriginal people in the same constitutional position as people of other races.

However, Justice Gaudron also observed that the words "for whom it is deemed necessary to make special laws" limits the scope of the race power. The race power is broad enough to authorize laws that operate either to the advantage or disadvantage of the people of a particular race. The test of constitutional validity is not whether it is a beneficial law, but rather whether the law in question is reasonably capable of being viewed as appropriate and adapted to a real and relevant difference, which the Parliament might reasonably judge to exist. Whether a law would be necessary requires consideration of the current circumstances in which Aboriginal Australians find themselves. Justice Gaudron described these circumstances as being "circumstances of a serious disadvantage, which disadvantages include the material circumstances and the vulnerability of their culture." As a result, only laws directed to remedy that disadvantage could reasonably be viewed as appropriate and adapted to the current circumstances of Aborigines.

Justice Kirby found that the law was outside of the race power because it was detrimental to, and adversely discriminatory against, people of the Aboriginal race of Australia by reference to their race. Justice Kirby conducted a similar analysis to Justice Gaudron's by reviewing the historical enactment and amendment to the race power. Justice Kirby differed from Justice Gaudron in finding that the 1967 referendum required that the power only be used to benefit a particular race. Justice Kirby further expressed his view that the manifest abuse test, which was the mechanism by which the court was to protect the people from racist laws, was unworkable. Justice Kirby viewed the manifest abuse test as inadequate to prevent the enactment of laws such as those in Germany during the Third Reich or in South Africa during Apartheid.

Justice Kirby went on to state that, where the Constitution is ambiguous, the Court should adopt a meaning that conforms to principles of universal and fundamental rights. Justice Kirby pointed out that the international law of fundamental rights prohibits detrimental distinctions on the basis of race. The Constitution should not allow the enactment of laws that violate fundamental human rights and human dignity. Justice Kirby's approach to constitutional interpretation does not appear to have the support of any of the other members of the Court.

The Court's propensity to state fundamental values that oppose racism towards Aborigines, which was present in Koowarta and the Tasmanian Dam case, gave way in the Hindmarsh Island Bridge case to the simple repeal argument. In phrasing the question in terms of power rather than rights and by adopting a traditional interpretation of the relationship between constitutional heads of power and international law, the majority of the High Court avoided the explicit determination of rights. However, the Court's decision also proved immensely significant in the context of native title and its extinguishment by legislation, which is discussed below. The Australian Constitution's race power thus remains inherently discriminatory in nature and with the limits of allowable discrimination still to be determined.

[FNa1]. B.Com (Hons) (UNSW '93), M.Com (Hons) and LLB (UNSW '96), LLM (UC- Berkeley '01). Solicitor of the Supreme Court of New South Wales, Australia. An earlier draft of this paper was presented at a Berkeley Journal of International Law seminar February 28, 2001.

Dividing the Catch: Natural Resource Reparations to Indigenous Peoples

 Heidi Kai Guth

excerpted from:  Heidi Kai Guth, Dividing the Catch: Natural Resource Reparations to Indigenous Peoples--examining the Maori Fisheries Settlement , 24 University of Hawaii Law Review 179-244, 184-215 (Winter, 2001)( 430 Footnotes Omitted)


The Polynesian demigod, Maui, fished Aotearoa from the sea, and he and his waka (canoes) populated the new land with a progeny of fishers. Traditionally, when Maori fishing nets became ragged, some Maori would send an expert to the wild flax fields, where he would pluck two blades of flax and look for ends that had already been nibbled by fish. When the most tempting flax was found, the weaving was made tapu, which forbade food, fire, and people not directly associated with the task from being allowed near the net. Because many nets of Aotearoa's indigenous, pre-Colonial Maori were more than 1,000 yards long, the whole community would be somewhat involved, even if not allowed on the site. And, in some traditions, when the net caught its first haul, the "first" fish would be returned to the sea in thanks and in hopes of that fish leading more to the net in the future. Of that catch, only one fish per person who had helped in the net's creation would be kept. Through this ceremony, New Zealand's Maori thanked both the fish and everyone who had created the net and supported the community. Thus, Maori always knew the importance of respecting the resource as well as the people.

Maori today make up a steadily increasing minority of fifteen percent of New Zealand's population of 3.8 million. New Zealand is small enough that this indigenous group can be heard, and Maori are determined to be heard. Their problems are common among indigenous peoples elsewhere, but uncommon in that Maori are persistent and moderately successful in trying to solve them. Most Maori progress flows from the original Treaty of Waitangi, signed by Maori and the Crown on February 6, 1840.

Maori claims of violations of the Treaty of Waitangi are heard both in federal courts and in the Waitangi Tribunal, created by the Treaty of Waitangi Act of 1975. The Tribunal initially was charged with investigating Maori claims against government actions since 1975. In 1985, the national government allowed the Waitangi Tribunal to hear claims dating back to 1840. The Tribunal reports its findings of prejudice against Maori and makes recommendations of compensation. It has no enforcement capabilities, but by merely reporting its findings, it often influences all three branches of New Zealand government.

The following sections describe and discuss fisheries claims arising from the Treaty. The first difficulty in analyzing the Treaty is determining the words' meanings and translations. The first section explains that because of differing interpretations, many Maori believe that the Treaty has never been honored by the Crown, and seek to remedy the subsequent injustices. The second section describes the legal and political history of fisheries issues that have led the way toward the first Pan-Maori settlement. The final section in this Part is an analysis of the Treaty of Waitangi (Fisheries Claims) Settlement Act 1992 and its impacts on Maori commercial and customary fishing.

Silencing Maori Women: Alliances of Men Across Race

Silencing Maori Women: Alliances of Men Across Race

Nan Seuffert

excerpted from:  the Nation-state in Aotearoa/new Zealand, 10 American University Journal of Gender, Social Policy and the Law 597-618, 599-612 (2002) (127 Footnotes)

Centering Maori women activists in an analysis of the convergence of policies of structural adjustment and political claims for self-determination and redress of colonial injustices suggests that the settlements were an alliance of men across race to silence these women. The political activism of some Maori women, gaining momentum from the 1970s, operated to disrupt the illusion of unity of the nation. Regaining the illusion of unity, and in particular reaffirmation of the dominance of the minority of privileged white men, required erasing these Maori women activists as serious political subjects. This move required the cooperation of at least some Maori men in a temporary alliance among men across race in a process of "settlement" of historical colonial injustices. This part examines Maori activism's disruption of New Zealand's illusion of national unity, and the resultant configuring of a national identity as bicultural. It then briefly discusses policies of structural adjustment and the corresponding emergence of a national identity of global entrepreneurs. The production of these two national identities resulted in tensions that were resolved through the settlements process, with the assimilation of some Maori men to the new national identity of global entrepreneurs. This resolution restored the illusion of national unity, silencing and erasing the activism of Maori women.

A. Disrupting New Zealand's Illusion of National Unity: The Nation as Bicultural

The dominant story of the founding of Aotearoa/New Zealand is a simple one of cession of sovereignty by the indigenous Maori people to the British in the English version of the Treaty of Waitangi of 1840 ("Treaty"), resulting in one unified British New Zealand. Contrary to the dominant story, it has been argued persuasively that the Maori version of the Treaty, signed by most Maori leaders, did not cede sovereignty to the British. Historical data suggests that, in the Maori version of the Treaty, Maori people agreed to the British coming into the country to govern the British while Maori retained their traditional control over their land and people. The "appropriative mistranslation" of the English version of the Treaty, which clearly ceded sovereignty, into a Maori version that envisioned power sharing, was followed by the repression of the Maori version in the dominant foundation story. The textual and material violence necessary to this repression produced an illusion of national unity. Simultaneously, however, repression results in return. There have been repeated disruptions to the myth of national unity throughout New Zealand's history.

Discourses of biculturalism, which gained momentum in the 1970s, developed out of the most recent disruption to the illusion of national unity in New Zealand. Political activism on the part of Maori, often initiated and led by Maori women, increased and diversified. The local context of Treaty protests was framed by the global development of discourses of multiculturalism and indigenous, self-determination claims. The 1984 Labour Government promised prior to the election to honour the Treaty and to settle Treaty grievances. Initially the Government's discussions of these issues occurred in terms of multiculturalism and even broader equity considerations.

The broad discussion of equity and multiculturalism was not satisfactory to many Maori people, who responded with claims that biculturalism was the appropriate relationship for Maori and non-Maori under the Treaty of Waitangi. Some argued that a focus on multiculturalism was an excuse for "doing nothing" and a means by which the state could silence Maori demands and placate mainstream New Zealand. Perhaps the most powerful explication of biculturalism appeared in Moana Jackson's 1988 report on Maori and the criminal justice system, which critiqued both the system's basis in a monocultural philosophy and the substantive outcome of criminal convictions. Jackson concluded that parallel legal systems for Maori and non- Maori in Aotearoa were mandated by the Treaty. While Jackson's report was quickly sidelined and repressed by the government, his analysis resonated powerfully with many Maori and some Pakeha.

In contrast to Jackson's proposal for parallel legal systems, state- sponsored attempts to implement biculturalism included the establishment of the Waitangi Tribunal, which was eventually given jurisdiction to hear the claims of Maori for Treaty grievances dating back to 1840. The Tribunal was initially empowered only to make recommendations to the government with respect to those claims, not to order redress binding on the government. Jane Kelsey has cogently argued that the Tribunal process channeled the energy of claims for full political self-determination into a cumbersome, expensive, and largely ineffectual apparatus that operated to legitimate the government's supreme authority, without placing any obligation on it to act.

B. State Structural Adjustment: The Nation as Global Entrepreneurs

Prior to 1984, the New Zealand state might have been described as socialist, providing free education through the tertiary level, student living allowances, a comprehensive national health system, an extensive state housing system primarily in single family dwellings, a state pension plan, and welfare services and income assistance, including a domestic purposes benefit for single mothers. The State also owned railways, power generators, television and radio stations, universities, airlines, many coalmines, most forestry, some hotels, a shipping line, a ferry service, and a number of farms. It wrote wills, administered deceased estates, and ran banks and the largest contracting business in the country. All of this changed with the 1984 Labour Government, which commenced and accelerated the project of state structural adjustment. While neo-liberal economic policies were contradictory to Labour's traditional policy stances, economic and political instability in the early 1980s provided an opening for a push for law and policy reform by advocates of structural adjustment within the New Zealand Department of Treasury ("Treasury"). These advocates were influenced by economic theory produced in the United States. Treasury's advice was based on faith in market efficiencies: "[e]ssentially, Treasury's advice was founded upon the assumption that the economy is self-righting." Faith in markets was combined with anxiety about regulation and the assumption that the economy prior to 1984 had been constrained from reaching its full potential by government interventions. The overall prescription for stimulating the economy involved downsizing the government in favour of more and bigger markets.

The New Zealand structural adjustment reforms have been divided into three stages. The first stage, commenced by the 1984 Labour Government, involved deregulating the commercial and financial markets. The idea was that deregulation freed the market to allow it to work its miracles. Deregulation included ending wage and price controls, and deregulating interest rates, controls on external investment and borrowing, and foreign exchange trading. The New Zealand dollar was floated on the foreign exchange market, the stock market and regulation concerning mergers and trade practices were liberalized, and the country was opened further to foreign investment and ownership.

The second stage of structural adjustment, beginning in 1986, provided for the privatization and quasi-privatization of state-owned assets and utilities. It was assumed that organizing these enterprises along commercial lines would result in market-driven efficiency gains. The New Zealand State- Owned Enterprises Act of 1986 ("SOE Act") restructured government-owned assets and utilities into businesses, with a view to their eventual sale. Any state-owned enterprise ("SOE") was to be run on a commercial basis and have, as its primary goal, the production of profits for the government owner. Corporatization and privatization of SOEs led to massive redundancies of employees and a much "smaller" state. For example, the Ministry of Transport went from employing 4,500 people to a few hundred, contracting out almost all of its activities in an attempt to stimulate efficiencies through competition for the contracts. Also in the time period of the second stage, what was essentially another first stage deregulation project was carried out. The New Zealand Reserve Bank Act of 1989 ("RBA") was passed, repealing the New Zealand Reserve Bank Act of 1964 ("1964 Act"), with price stability through inflation control as its primary objective. The primary objective of the 1964 Act was to achieve full employment. In contrast, consistent with "orthodox macroeconomics," the RBA reflected faith in the marketplace to achieve the most efficient level of employment. The RBA, therefore, represents a further step in deregulating the economy by a "hands off" stance in monetary policy in relation to employment.

In the third stage of structural adjustment the success of the application of market principles to the new SOEs was applied to the remaining core state sector. Generally commenced after Labour was re-elected in 1987, it comprised the reorganization of the remaining state sector through downsizing, contracting out, and the imposition of rigid accountability requirements, in attempts to facilitate efficiencies assumed to be achievable through competitive markets. A fourth stage, deregulating the labour market and dismantling the welfare state, gained momentum with the election of a conservative National Government in 1990. The new Government immediately repealed the New Zealand Pay Equity Act of 1990 and the New Zealand National Labour Relations Act of 1987, and substituted the latter with the radical free market New Zealand Employment Contracts Act 1990 ("ECA"). Weeks after its election it started cuts to the unemployment and domestic purposes benefits. In the "Mother of all budgets" in June of 1991, it introduced further cuts to benefits and cut community grants, training programs, Maori development and legal aid. Disposable incomes of beneficiaries were cut by up to thirty percent. Following Treasury's lead, the National Government argued that cuts were necessary to restore integrity to the system and to provide incentives for beneficiaries to find work.

Taken together, these four stages represent a radical neo-liberal economic "experiment" voluntarily implemented in New Zealand to an extent usually only seen in third world countries in response to pressure from international monetary organizations. These reforms have taken Aotearoa/New Zealand from one of the most highly regulated to one of the least regulated countries in the Organisation for Economic Co-operation and Development ("OECD"), making it a model for neo-liberal economic policies. "Anyone who looks at privatization and government reform trends around the world tends to look first at New Zealand . . . no one has done a better job than them." New Zealand capitalizes on this reputation by "actively export[ing] advice on deregulation and privatisation."

The National Party's dramatic decline in support at the 1993 election and the success of a referendum to change the electoral system from first-past-the- post ("FPP") to MMP representation are both often attributed to the lack of popularity of, at least, the fourth stage reforms of the welfare state. The National Party was re-elected in 1993 by a slim majority in a context where the only other choice was the party that had initiated the radical reforms. Perhaps alerted to the possibility of overturns to its policy initiatives by its close win, and disturbed by predictions that MMP would result in more representative governments, the 1993 National Government quickly moved to attempt to entrench their fiscal policy through the New Zealand Fiscal Responsibility Act of 1994 ("FRA"). The fiscal strategies embedded in the FRA include stating principles of responsible fiscal management, which were seen as necessary to the maintenance of the confidence of the markets. These principles include reducing Crown debt by running budget surpluses, maintaining stable tax rates, and prudently managing the Crown's financial risks (usually by privatising Crown assets to avoid risks of loss). The requirement of extensive reports by the Government to the House of Representatives provides for monitoring of compliance with these principles. The FRA allows for only temporary departure from the principles of responsible fiscal management. Further, while the FRA is not formally entrenched in New Zealand law, non-compliance with its reporting requirements, or repeal, opens any government to attack on the basis that it is irresponsible with the country's money.

The stated aim of structural adjustment was making New Zealand markets (including its labour market) and products globally competitive. Competition became the buzzword and the benefits of competition were continually espoused. The centrality of competition to the economic policies restructuring the state required a corresponding rewriting of New Zealand's national identity. The national identity had to be shifted from one in which the motto "we take care of each other" was prominent, to one that emphasized self-sufficiency, individual responsibility and individual competition in domestic and global marketplaces: "For 40 years, New Zealand tried to build a civil society in which all its people were free from fear or want. That project has now lapsed. In its place is only a vague exhortation for individuals to go and get rich."

Politicians labeled this new society the "enterprise society." The paradigm citizen in this nation competes individually in global markets as a business entrepreneur. His interest in getting rich coincides with the national interest, as his business creates jobs and products for export. His wealth allows him to exercise citizenship to consume many goods and services previously provided by the government, but now more efficiently provided by businesses like his.

C. The Treaty Settlements Process: The Production of Maori Men as Global Entrepreneurs

The Eurocentric logic of identity provides a framework for analyzing the resolution of the tensions between the emerging national identities of biculturalism and global entrepreneurship in Aotearoa/New Zealand. These tensions came to a head in 1986 in New Zealand Maori Council v. Attorney General ("NZMC case"), where the New Zealand Maori Council ("NZMC"), a statutory body, challenged the privatization aspect of structural adjustment using the SOE Act. The tension was resolved through the assimilation of some Maori men as global entrepreneurs and partners to the neo-liberal Treaty settlements. The logic of identity in dominant Eurocentric discourses produces universal unmarked subjects, usually some versions of white European males, who enjoy a wide range of possibilities in constructing their identities. "Membership in the dominant group . . . is legally marked by a convenient lack of interdiction, by unlimited possibilities." The production of the universal unmarked subject relies on the logics of race, class, and gender for the displacement of these 'marks' onto 'others.' The logic of assimilation of these 'others' to the position of the universal unmarked subject operates in two steps. The first step recognizes the sameness of the assimilated subject. The second part of this logic resists the incorporation of difference, leaving the mark of difference as "the primitive, the local, or the merely contingent" unassimilated. This logic also structures the assimilated sameness hierarchically over the unassimilated difference.

In the NZMC case, the NZMC sought a court order enjoining the government from privatizing state-owned assets under the SOE Act. The NZMC claimed that by transferring state assets potentially subject to future Tribunal claims to SOEs with a view to privatizing them, the Crown was exercising its powers in a manner inconsistent with the principles of the Treaty in contravention of the SOE Act. The decision in the case provided some very limited protections for such assets, and highlighted the tension between biculturalism and economic restructuring.

The NZMC case was followed by a raft of cases challenging the SOE Act, and an increasing backlog of costly and time-consuming Tribunal claims. These cases and claims presented a practical obstacle and a political challenge to the legitimacy of the government's increasingly hegemonic economic agenda. In response, the government developed a policy of negotiating Treaty claims directly, with the goal of settling them fully and finally. Settlements of outstanding debts to Maori would be fiscally prudent, would remove the 'drag' from the economy represented by Maori people and resources tied up in Tribunal claims, and would provide finality to Maori grievances and certain title to state-owned enterprises, enabling the Government to maximize profits from their sale. The Treaty settlements produced in this crucible of biculturalism and neo-liberal economic policy involved structuring the settlement proceeds into corporate ventures. The benefits of the settlements were meant to "trickle down" to Maori people over time.

The recognition of sameness is the first part of the logic of assimilation. Some senior and influential Maori men were among those at the forefront of the reconstruction of Aotearoa/New Zealand's national identity. In 1984, as the Labour Government commenced implementation of neo- liberal economic policies, a few of these men formed a corporation called Maori International Ltd. ("MIL"). Subsequent to the NZMC case, the directors of MIL proposed the establishment of a Maori SOE that would "act as financial manager, advocate, negotiator, business advisor, commercial developer, lender and manager of trading operations owned by Maori investors." Maori opponents argued that this type of economic approach would leave Maori "subordinated to colonial economic and political structures," and the Maori SOE did not materialize. Despite this outcome, the directors of MIL were the men that the government turned to in its efforts to settle Treaty claims. They became known as 'the Maori negotiators,' assimilating themselves consistent with the new national identity of global entrepreneurs, or the "wheeler-dealer, BMW driving, cell phone carrying entrepreneur[s]." These men negotiated settlements of Treaty grievances as corporate deals mirroring the neo-liberal policies of structural adjustment.

The two principle Maori negotiators of the first two major iwi (tribal) settlements, which were the most politically visible, were rewarded for assimilating to the new national identity with knighthoods. The knighthoods came at great cost. Treaty claims had to be negotiated in monetary terms and structured consistently with neo-liberal economic theory, and had to ignore issues of self-determination and political power-sharing, such as Jackson's claim for parallel legal systems. In order to be constructed as reasonable, realistic, and deserving of knighthood, the negotiators assimilated to the new national identity, accepted a small fraction of the estimated amount of the claim, and agreed to fully and finally settle claims.

The first part of the logic of assimilation provided recognition for the Maori negotiators only to the extent that they were willing and able to mirror the new national identity as global entrepreneurs. The title 'corporate warriors,' popularly used for the Maori negotiators, signals assimilation as both the reflection of the dominant 'corporate' partner, and the difference as the 'warrior' marked local, primitive, and raced other. Similarly, the Maori negotiators have been tagged as the 'Business Brown Table,' or just the 'Brown Table,' as a reflection of the Business Round Table marked by race. The central corporation in one of the settlements is dubbed the 'Brown-faced Brierleys,' after Brierley Investment Ltd., one of the country's largest corporations. These labels in the neo-liberal economic terms of globalisation are translated in the colonial marking of the assimilated'other' as 'just like a white man' or as a 'black Englishman.'

Assimilation of the Maori negotiators as reasonable, realistic global entrepreneurs deserving of knighthood also allows those Maori who do not settle on these terms to be marked as unreasonable and unrealistic:

Mr Graham has offered $40[M] to the Whaktohea tribe in the Bay of Plenty to settle claims arising from the [C]rown's military invasion. The confiscated land today might be worth billions, says Mr Graham, 'but there are only 8000 of them (in the tribe) and the idea that somehow they should get all of that money is just totally unrealistic.'

The assimilation of the Maori negotiators leaves a residue of race that is reflected in appellations of 'brown' and 'warrior,' and is displaced onto those Maori who refuse to settle Treaty grievances.

D. Displacing Gender and Culture: Centering Maori Women

Within the dominant logic of identity, production of the unmarked subject of New Zealand's new national identity also required displacing the marks of gender and culture onto 'others.' White women are one of the necessary symbols of the local and particular against which the universal subject is measured. Within the logic of gender, white women, as those responsible for raising white men, are the bearers and reproducers of Eurocentric cultures, and serve as a civilizing presence within the nation. The re-emergence of the prominence of 'family values' during the process of structural adjustment and reconstruction of New Zealand's national identity may be seen as reaffirmation of the roles of white women as bearers and reproducers of Eurocentric cultures.

The process of colonization involved attempts to conform Maori women to the dominant logic of gender by constructing them as bearers of culture and civilizers of Maori men. In the crucible of discourses of structural adjustment and biculturalism, assimilation of the Maori negotiators into the new national identity displaced the mark of culture onto Maori women. The negotiators are constructed in opposition to the local, particular and primitive represented by the colonized 'traditional' culture imposed on Maori women. Simultaneously, the agency of Maori women exceeds this construction.

Prominent Maori women scholars have pointed out that there is much evidence that, traditionally, Maori women assumed a whole range of leadership roles. There is "unmistakable evidence that women's lives were richer and more varied than has ever been suggested in the 'received' anthropological literature" and "all Maori women enjoyed a better status than that being experienced by women in Europe at the time." Imposing the dominant logic of gender onto the operation of gender in Maori culture during colonization in New Zealand involved rewriting the roles of Maori women as subordinate to Maori men, and consigning Maori women to the private sphere. For example, British officials often attempted to refuse political recognition to Maori women leaders by refusing to allow them to sign the Treaty, rendering them invisible in the public sphere of the new British colony. Despite these attempts, a number of Maori women signed at the insistence of the groups that they represented.

These rewritten, static 'traditional' roles are again imposed on Maori women as part of the process of assimilation of some Maori men. Maori women are often kept out of the management of Treaty settlement assets with the argument that 'traditional' Maori culture requires men to manage assets: "There is no system of guarantee of a place for Maori women within our own institutions or within the new organisations which have evolved to manage our assets. Any talk of structural change sends our Maori men into a tail spin about 'cultural correctness' and 'making waves."' At the same time, assimilation indicates that the male roles are fluid: "The changes being made to our culture are freeing up the role and status of all men, Maori and Pakeha, whilst petrifying, meaning ceasing to change or develop, the role and status of Maori women."

The gender 'spin' on the settlements process is that fluidity is appropriate for the roles of Maori men and the implicit assumption is that women's roles must remain static. In other words, Maori women carry, or symbolize, 'traditional' Maori culture. The exclusion of women from the management of settlement assets reflects the dominant Eurocentric logic of gender, within which women are bearers of culture.

The actions of many Maori women far exceed the construction of "Maori women" through this logic of gender. Maori women have been central to the revitalization of Maori culture over the past two decades. Many occupy powerful and influential positions within Maori culture and society, and "have maintained a vanguard position on Treaty issues and debates with the Crown." A recent survey of Maori people revealed that leadership was firmly located at the hapu ('sub-tribe') level (not in the so-called national figures, some of whom were chosen by the government to negotiate the Treaty settlements). Furthermore, two of the only three Maori leaders who gained over ten percent recognition outside of their iwi borders were women.

A theoretical analysis that centers on Maori women focuses on their pivotal position in the operation of the settlements process. The political activism of some Maori women, gaining momentum from the 1970s, operated to disrupt the constructed illusion of unity of the nation. Regaining the illusion of stability and, in particular, reaffirmation of the dominance of the minority of privileged white men, required erasing these Maori women activists as serious political subjects. Cooperation of at least some Maori men in a temporary alliance among men across race in the Treaty settlement process facilitated this erasure. Necessary to this dynamic is the construction of the Maori negotiators as reasonable and rational assimilated subjects. Maori women who refuse to participate in this production by performing the corresponding roles of bearers of'traditional' Maori culture are labeled 'Maori activists' and represented as "hysterical and out there." The construction of their 'hysterical' claims for full political self-determination in opposition to the 'realistic' acceptance of the Maori negotiators of tiny fractions of commodified claims operates to maintain the legitimacy of the myth of the illusion of national unity

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