interview with Philip McKibbin
Moana Jackson (Ngāti Kahungunu, Ngāti Porou) is a Māori lawyer, specialising in the Treaty of Waitangi and constitutional transformation. He was involved in drafting the UN Declaration on the Rights of Indigenous Peoples, and served as a judge on the International Tribunal of Indigenous Rights.
What meaning does ‘aroha’ have for you?
When I saw your questions, I thought, ‘You’re starting with the hardest one.’
I always think it’s difficult and problematic to try and pin down our words or concepts with a simple translation into English. I often talk about a – probably apocryphal – story, but John Steinbeck’s novel The Grapes of Wrath was translated into a number of languages, including Japanese; and then at some stage, for some unknown reason, the Japanese was translated back into English, and the title didn’t end up as Grapes of Wrath, but Lost Raisins. And that’s what I call a linguistic double bind. So I’m always somewhat hesitant about trying to give a simple meaning to what are often really complex ideas.
So the way I like to talk about ‘aroha’ is in the context of ‘aroha mai, aroha atu’, that it’s a reciprocity of obligations, a reciprocity of relational balance that includes the idea of ‘love’ – but it’s much more, of course, than the simplistic Valentine’s Day notion of love. So for me, it’s a loving relationship based on reciprocity, and to me the key is the reciprocity, really. And there are risks if one just defines it as ‘love’, in simplifying, as I said before, what is really a complex idea. I don’t think any of the words that get thrown around too easily – like ‘aroha’, ‘manaaki’, ‘kaitiakitanga’, and so on – there’s a risk that in simplifying them in English; you not only diminish their complexity, but you make them subject to redefinition to serve interests that aren’t necessarily ours.
So I struggled a bit with that question when I saw it the first time, but I hope that makes sense.
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How has your understanding of aroha informed your political engagement?
Well, I think that the very idea of, say, mana motuhake, or what in international law is called ‘self-determination’, to be effective has to be an aroha-based construct. That is, you can’t work to improve the well-being of our people, to ensure that our mokopuna are protected and safe and so on, unless the political framework within which you operate is relational and based on aroha in its broadest sense, which is why I think the Westminster system of government that was imposed here after 1840 is so problematic: because it has no place for aroha, it has no place for a relationship of balance, because it depends upon an adversarial construct. The very idea of an opposition party is adversarial; it’s to reposition an argument in ways that can be destructive, that can be diminishing of the mana of others, rather than encouraging the growth of mana, the protection of good relationships, and so on. And when I talk – as I often do – about constitutional transformation, for me that’s not just about changing the constructs of a system; it’s changing the values of a system.
They say ‘politics is the art of the possible’; but politics should also be the vision of what some see as the impossible, and that necessarily involves an aroha-based perception that all relationships are worthy, that all relationships have a context. So, the relationship between humans is part of a wider relationship with Papatūānuku, and so on. So bearing in mind the complexities of aroha, I think it’s important that politics, in the sense of the ability to be self-determining, to make values-based laws, and so on, to govern how people should live with each other, is necessarily aroha-based.
And when one discusses that, particularly in the context in this country, based on the Westminster system – and you’ve probably encountered this, I’m sure – the notion of a politics of love, or whatever, tends to get rubbished or scoffed at as unrealistic, but that to me just illustrates the cultural chasm – the perceptual chasm, really – between sovereignty as defined in the post-Westphalian period in Western European history, and not just Māori but I think the general Indigenous notions of how the relationships between people should be governed.
And so when I first heard of the work that you were doing and I read your book, and read Max’s book, and so on, it was like, ‘Man, I’ve been waiting for people to say this for so long.’ So it’s been very reassuring for me, as well, but I don’t underestimate the difficulty of shifting that political paradigm.
But in a way, the Treaty relationship gives us a starting-point in this country that does not exist in other places. I wonder if I can tell a story, is that okay?
A few years ago, when I was quite young and impatient, we had hui at home, and it was just after the John Rangihau report, ‘Pūao-te-ata-tū’, had been released, and we had contributed to that report. And some people from what was then the Department of Social Welfare did a little hīkoi to different places to talk about the report, and it became quite clear that they wanted to sideline and silence the report – that is, discussions of institutional racism and so on were unacceptable and dangerous and so on – and I was sitting there next to my mother, and waiting for some of the old people to criticise or respond to these Department of Social Welfare people, but they sat there and sort of politely nodded, and I was sure that they disagreed, but they didn’t say anything. And I just remember getting really frustrated, not just with the Social Welfare people, but with our people, and my mother must have sensed that, as she often did, and she reached out and patted my hand (laughs) and said, ‘Don’t you ever forget what brought our people to this place.’
And what brought our people to that place was the realisation that the centuries that we had in developing something quite unique – not perfect, because it was a human construct – but something quite unique and based on values like aroha, manaakitanga, and reciprocity, and so on, that had been simply dismissed by the colonisers, and that my old people had lived through parts of that process that I could only imagine, how people like my koroua and so on had had to struggle simply to survive, let alone keep alive the values that they thought were important. And I’ve never forgotten that day, and I’ve never forgotten mum’s reprimand, really, to never forget how our people have got to where we are.
And so, if there are difficulties now talking about politics of aroha or something, and those difficulties are sometimes expressed by our people who would say that’s being unrealistic or parrot similar Pākehā responses, then I try very hard to remember how we got to the place we’re at, and that rebuilding that traditional sense of being actually means un-building, or deconstructing, what’s been created to damage it. And that to me is the big problem; the problem is not how that is, it’s how we deconstruct a system based on quite different values.
You have spoken about values. What is the relationship between values and love or aroha?
I think aroha is one of the seminal values in our intellectual tradition – and I use that term deliberately, because a lot of people still don’t think we have an intellectual tradition. And I don’t like, as I said at the start, simplifying complex ideas. Which is why I understand and respect the idea that Mason Durie talked about many years ago, tapa whā, but it has been taken by others and misused to become a gross simplification, where the tapa whā, if you like, are the sum total of that intellectual tradition, when of course they’re not – they’re part of a much more complicated and vibrant tradition, and aroha is fundamental to that.
Again, that idea, ‘aroha mai, aroha atu,’ that reciprocity is fundamental to the exercise of political and constitutional power as much as anything. I remember around about the time that he wrote ‘Pūao-te-ata-tū’, John Rangihau said that rangatiratanga is people-bestowed; that is, it only exists as long as people understand and bestow it upon those they trust to exercise leadership. And that’s part of the ‘aroha mai, aroha atu’, I think, that they give the structures of politics, what I call the sites of power, to the imprimatur, or the sanction for that power to be exercised; but if it’s not exercised in a way that is consistent with respect and aroha, then the people can withdraw their bestowal of that authority.
And that’s, again, that giving and taking that is so important.
If we succeed in realising the Politics of Love, it will look different in different places, and for distinct peoples. This is because we have diverse cultures, knowledges, and histories. What might loving political community look like here in Aotearoa New Zealand?
I’ve often said over the years that the Treaty of Waitangi was the first immigration act that allowed people from other places to find a home in this country, and to shape that home according to their aspirations and so on. But immigrating to this country to me has always been like going onto the marae. So you are bound by the kawa of the marae that you are visiting. And that kawa might be quite different to yours, whether it’s the order of speaking where all the hau kāinga speak first and then hand it over to the manuhiri, or tū atu, tū mai, where the speakers alternate, and so on. The kawa is always different, but for me, the base, the papa, of the kawa remains sourced in the reciprocity of relationships.
And I can remember when, as quite a young person, I first started working with other iwi, and I always used to feel humbled, really, that during the mihi, they would never say, ‘Haere mai, Moana,’ ‘Haere mai, lawyer,’ or whatever; they would always say, ‘Haere mai, Kahungunu,’ ‘Haere mai, Ngāti Porou.’ And that was that statement of relationships, and once that relationship is established, then you’re able to move ahead in the kōrero, to either raise challenges, or raise questions, or share ideas. But once the relationship is named, then it lays the groundwork of the reciprocity that’s essential for good relationships.
So, for me, the constitutional kawa, if you like, of this country would reflect the constitutional kawa of the marae. And so manuhiri go onto the marae acknowledging the authority of the hau kāinga, but acknowledging, too, the relationships which exist; and it’s the existence of those relationships which mean that although they abide by the jurisdiction of the kawa of the marae that they are visiting, that does not mean jettisoning their own mana, their own authority. It’s an expression of what I call interdependent relationships that recognise the independence of the parties. And if you’re going to recognise a relationship of interdependence and independence, then necessarily something like aroha becomes fundamental to that recognition, it seems to me, because if you don’t have aroha for the relationships, then you don’t have the capacity to respect the interdepence upon which, in the end, all good decisions are made.
Throughout your life, you have been actively involved in promoting tino rangatiratanga and securing legal recognition for Indigenous rights internationally. One concept you have written about is ‘restoration’ – that is, restoring our relationships with each other and the natural world through political processes. How does the notion of restoration fit with the need to imagine new ways of being together?
If you are going to work towards what I call constitutional transformation, then that actually, in this country, is not building something new; it’s restoring something that has almost been totally destroyed, but not entirely. So restoration, for me, is finding a way of ensuring interdependence that is based on the reciprocity of relationships, that is based on what I always call the stories in this land.
The Westminster system of government comes from stories in the land in Europe. The notion of sovereignty itself is developed in France, originally, and then adapted in England and Germany and other countries. But it’s a unique – and I think deeply-flawed – political construct that came from the land and the histories of those people. While we have similar concepts of power that come from this land, the ineffable hopes and whakapapa, the persistent obligations to look after Papatūānuku; and if we restore those values, if we are clear about what they mean, then, it seems to me, that the model of constitutionalism, the model of decision-making, if you like, will arise from those values. What happens too often is we come up with different governance models and then try to squeeze tikanga into it, whereas I think if we can restore the values – both as philosophical concepts and as ways of living – then the actual models of governance will arise from that. So if you accept that aroha is one of those founding ideals, then a model of governance that arises from that will necessarily not be adversarial. There will be differences, because aroha relationships, being human relationships, will give rise to difference, but it does not presuppose that difference, that conflict, is the basis upon which decisions must be made.
So, the practice, if you like, of politics, and the models through which it’s practiced, will arise when we understand and restore the primacy of those values. And I never underestimate the difficulty of that, because the conflictual ideas of Western democracy and so on are so deeply entrenched that that sort of change will not be easy. But it’s possible to achieve it, and I think the shift that has occurred in this country in the last 20-30 years, particularly among a lot of younger people, indicates some sort of desire for that kind of change. And so I have hope that that change will come, and that the human capacity to cause harm, the human capacity to damage the Earth, and so on, can and will eventually be mediated through the restoration of something quite different. And if you go back long enough in human history, even in European history, there were notions of reciprocity, notions of the Earth being the mother, and so on, and they got submerged by the imposition of largely Christian-based hierarchy and so on. But I think it’s a very human desire to have a different way of building relationships, and making decisions, and so on.
All political systems are flawed – as you said earlier, they’re human constructs. You have written, for example, about the shortcomings inherent in the UN Declaration on the Rights of Indigenous Peoples, which is nonetheless an extremely important document. Going forward, how can we mitigate the risks inherent in processes which seek to codify rights which have long existed outside of such codification?
All of the years I was involved in the drafting of the Declaration, that was one of the issues we grappled with on a number of levels, because the whole construct of human rights as currently understood is individuated. The notion that we advocated in the drafting of the Declaration that there were rights invested in collectives was opposed by just about every state that took part in the discussions, and the CANZUS states – Canada, New Zealand, Australia, and the United States – seemed to take turns at being the most vociferous opponent of collective rights. And then that fed into their opposition to the right of self-determination, which of all the human rights is the most deeply sourced in collectivity, because it’s not a right that vests in individuals. In all of the human rights conventions it talks about, ‘all peoples have the right of self-determination’. And so we took that article from all the other human rights conventions and just transplanted it into the Declaration, really, and added the word ‘Indigenous’ so that Article Three reads, ‘all Indigenous peoples have the right of self-determination’.
So if we accept that the most basic right, if you like – and I have difficulties with the word ‘right’, but that’s another discussion – if the base right of self-determination is sourced in the group, then it’s quite easy, I think, to construct a dialectic of rights which is collective rather than individual, that recognises the place of an individual within a collective. Then from that, you develop the institutions, if you like, which will give effect to that collectivity. And one of the hopes that I know lots of Indigenous peoples had with the Declaration was not that it would become some rigid, binding document, but a declarative statement of what ought to be. And although it was constantly limited by states, redefined by states, I think that Indigenous starting-point managed to survive attempts by states to remove it. And certainly all of the Indigenous peoples that I got to know as friends and colleagues during that long drafting process felt at the end of it that although it was not able to contain as much as what we wanted, it nevertheless contained the essence, simply because in spite of the objections of many states, including New Zealand, the collectivity of self-determination was retained. That, I think, is the main value, really, of the Declaration; it managed to hold onto that idea.
I remember a good friend of mine, Glenn Morris, who’s a Shawnee jurist, often attended the drafting sessions at the UN, and would often quote John Donne, the English metaphysical poet, that, ‘no man is an island, entire of himself’. And that – although he was a rabid Right-wing fundamentalist Christian (laughs) – that notion that no one is an island was very important to Indigenous peoples drafting the Declaration, I think. And that’s, as I’ve said, reflected in self-determination. It’s also reflected in the fact that it’s important to always read the Declaration in conjunction with the other human rights conventions. It doesn’t stand alone. It’s part of a tradition of trying to frame the aspirations of humans in rights terms. And so I never talk about the self-determination in the Declaration without referring to other conventions that refer to self-determination as well, because they’re all interlinked, and when you see them as a whole, then even allowing for the individuation of the whole human rights discourse, I think they provide a framework that the Declaration both drew from, and which the Declaration also informs, since it was eventually passed by the General Assembly.
When you think about constitutional transformation and the legal recognition of Indigenous rights here in Aotearoa, what are the implications of our getting it right here for those living in other places?
Ani Mikaere often talks about tikanga as being the first law of this land, and it’s still the best succinct definition of tikanga that I know. But other people have brought other tikanga, if you like, with them, other ways of seeing the world, other ways of understanding human relationships, some of which are contrary to tikanga, but they are part, if you like, of the cultural baggage which they bring. And the challenge in any process of constitutional transformation – but a challenge which, I think, is easily surmountable if we use Te Tiriti o Waitangi as the base – is how to allow space for the differences that people bring within a shared notion of what it means to be of this land, what responsibilities and relationships should be required if you’re going to live in this land. Constitutions as documents or sets of conventions aren’t the repository of answers to everything; but it seems to me if they are based on values that can be generally recognised, no matter where people come from, then they provide a framework, not only in which governance decisions and all of those things can be made, but more importantly they provide a stated base upon which people can shape their relationships.
So constitutional transformation, for me, has always been more than, ‘How do we find a way of governing this land?’ It’s more, ‘How do we find a way of living together in this land?’ And I think the current constitutional system doesn’t allow that aspirational option, because it’s fossilised in conflict, it’s fossilised in hierarchy, it’s fossilised in ideas that haven’t come from this land. I don’t watch Parliament very often, because I hate the adversarial nature, and the presumption that you can score points off someone is more important than making joint decisions that might benefit people, where if a political party, after considerations, decides to change a particular policy, that’s never seen as a considered option, but a sign of political backtracking, and weakness, and so on. And those sort of petty things are embedded in that system, but they need not be part of a constitutional order.
There’s always more than one way of making decisions. There’s more than one way of working out how people can live together, and the legalism, the constitutionalism, that colonisation always imposes, is directly contrary to that relation of a shared aspirational wish for interdependence. Which is why when people talk about decolonisation, I tend to talk more, again, about restoration. Successful restoration of a better and more human notion of relationships is in itself a decolonising act. Also, in that sense, constitutional transformation becomes a means to a decolonising end, becomes an aroha-infused means, if you like, of finding a different way to live with one another. And if the Treaty offered anything to people who came here, it was a way to live one with the other, accepting the kawa, if you like, of this country, sourced in the land of this country, and accepting the courage needed to imagine something different.
You might be aware, I did a report with some others in the 1980s on Māori and the criminal justice system, and a few years ago Ngāti Kahungunu asked if we’d do an update on that report, which I’ve been working on with two pretty amazing young women – Anne Waapu and Ngawai McGregor – and we’d hoped to get it finished about this time last year, then I got sick, so it’s sort of been delayed. But in that report, we talk about deconstructing the current criminal justice system, deconstructing what is, in effect, a carceral state, and replacing it with a constitutional, social, political, and economic system in which the understanding of harm, why people cause harm, and what can be done for those who’ve caused harm, and those who have been harmed, can begin at a different place, and although we don’t use the word ‘aroha’ very often, it is, for me, an aroha place, so that we restore what at home we call a state of ea, a state of calm, a state of balance; and if you have a political-social system that aims to establish and maintain a state of ea, then you have a just society, then you have a society where harm may still be done, but it may be done less often, and there are different ways of dealing with it. And that, sort of, singular justice focus, if you like, is for me part of that wider conversation we’ve been talking about today. And so, the Politics of Love, or whatever term one wishes to use, is relevant not just as a means of trying to work out how people can live together, but it’s relevant in quite specific ways, about how we might minimise harm, keep people safe, and so on.
(Interviewed on 2 June, 2021.)
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