Robert Andrew Joseph


He whakahou rongo wahine he tatau pounamu … A peace arranged by a woman is a greenstone door [Māori Proverb].1


Introduction

Greenstone (jade) was highly valued in New Zealand because it was durable, beautiful, and precious. Greenstone is found only on the west coast of the South Island and was used as a means of exchange. In times of trouble, peace could be secured by ending warfare through a political marriage. Peace, thus established, was often likened figuratively to a greenstone door as both the woman and the peace ceremony were seen to be durable, strong, and valuable.

Some conflicts and injustices span the duration of a political regime, a war, or a historical era while others persist much longer. The gross mistreatment of Indigenous peoples in New Zealand, Canada, and other countries has lasted some two to five hundred years, depending on the population and their particular history. Not only have these situations spanned remarkably long periods of time, they have also covered a wide range of harms and injustices, including deprivation of life, sustenance, liberty, land, culture, language, religion, and development.

The appropriate and effective resolution of Indigenous peoples’ grievances in New Zealand and Canada is complex and challenging, demanding more than legal-commercial transactions. Often, Indigenous peoples are seeking a new relationship based on authentic power-sharing and recognition, validation, preservation, and development of their cultural way of life in an updated twenty-first century context. The kind of development advocated is described by Indian economist Amartya Sen,2 which is a development that brings with it the freedom to individuals and peoples to develop their capabilities, including, most importantly, the capability to be themselves.

This paper proposes that reconciliatory justice can make a fundamental contribution to achieving the desired outcomes to a process of reconciliation between parties. Reconciliatory justice requires an ongoing commitment to future peace-building, sustained in deeds and not just words. It provides a process for appropriately addressing past grievances, for exploring future relationships, and for overcoming a culture of denial. Reconciliatory justice empowers Indigenous peoples with space, place, and resources for reconciliation and sustainable development, potentially creating a “greenstone door” to durable, respectful relationships among peoples.

Denial of historic wrongs in post-colonial societies is a major obstacle to initiating processes to achieve a new relationship. Elaboration of the many forms that denial assumes is presented as background to the discussion of essential components of reconciliatory justice. Reference to the Waikato-Tainui historic raupatu (land confiscation) grievance in New Zealand is woven throughout the paper as a case study to illustrate the lengthy pursuit of justice in a New Zealand context. Waikato-Tainui is a Māori tribe whose territory is in the central North Island area of New Zealand. In 1864, following a number of battles with the British, 1.2 million acres of fertile Waikato-Tainui land was confiscated, for which historic injustice the people of Waikato-Tainui have been seeking redress ever since.

This study is offered as a resource in conceptualizing a way forward as the Canadian Truth and Reconciliation Commission is launched, pursuant to the Indian Residential Schools Settlement Agreement that was implemented in 2007.


The Politics of Denial

Denial is a process by which people block, shut out, repress, and cover up certain forms of disturbing information or evade, avoid, and neutralize the implications of this information. Stan Cohen provides an authoritative classificatory framework for analysis of multiple forms of denial.3

Literal denial is an assertion that something did not happen or is not true. The facts of the matter are being denied: there was no massacre, they are all lying, and we do not believe you. Common to all such assertions is a refusal to acknowledge the facts. A contemporary example is the revisionist historical views of some regarding the annihilation of European Jewish people, which dismiss the entire event as a hoax or a myth.

Interpretive denial does not necessarily deny the raw facts, but gives them a meaning different from what seems apparent to others. Thus, government officials responding to allegations about injustices to Māori or First Nations might claim that nothing happened or something did happen but this is not what you call it. What happened is the “transfer of populations,” not forced expulsion, or “moderate physical discipline,” not abuse. In all cases, by changing words, using euphemisms or technical jargon, the observer disputes the cognitive meaning given to an event and reallocates it to another class of event. A further ploy of the revisionist movement with its holocaust denial is a combination of both literal and interpretive denial: it did not happen, it happened too long ago to prove, the facts are open to different interpretations, and what happened was not genocide.

A poignant example in New Zealand was the national controversy over the use of the term holocaust by the then-Associate Māori Affairs Minister, Tariana Turia, to the Psychological Society in Hamilton in 2000. Turia stated:

What seems to not have received?… attention is the holocaust suffered by indigenous people including M?ori as a result of colonial contact and behaviour.4. Turia eventually apologized for causing the political storm, resigned from the Labour Party, and subsequently formed the Māori Party.]

Turia’s speech caused a political storm when it was interpreted as comparing M?ori experience of colonialism to the Jewish holocaust of the Second World War.5 Mason Durie affirmed that although “the term ‘holocaust’ might grate on the NZ psyche, ‘when you think the population of 200,000 Maori in 1840 was reduced to 42,00 [sic] in 1900, that’s pretty close to a holocaust.’”6

Implicatory denial does not attempt to deny either the facts or the conventional meaning they are given. The observer denies, rather, the psychological or moral implications that might follow from the facts. Any obligation to make a moral response is evaded by justification (they are getting what they deserve) and/or indifference (I know what’s happening but it does not bother me) to various forms of accommodation and normalization: “that’s just what happens in places like that.”7

There is an obvious difference between those forms of denial that are personal, psychological, and private and those that are shared, collective, and organized. Cohen describes three possibilities:

Personal denial appears to be a wholly individual reaction or at least an action that can be studied at the psychological level, for example, alcoholics and drug addicts refusing to acknowledge their dependency. Personal denial may be termed as a psychological way of coping with disturbing knowledge.

Official denial is public, collective, and highly organized. In more totalitarian societies, such official denial extends from particular incidents of human rights violations to an entire rewriting of history. Denial is not a private mechanism; the state has made it impossible or dangerous to acknowledge the existence of past and present realities. In more democratic societies, official denial is more subtle, involving, variously, a twisting of the truth, a setting of the public agenda, managing news releases in the media, and selective concern about some victims but not others. Denial here is not a personal matter but is built into the ideological fabric of the state. The study of Indigenous peoples’ rights and grievances is simultaneously a study of the official techniques that are used to deny these realities, not just to observers but also often to perpetrators themselves.

An example of organizational denial in New Zealand was in the 1926 Sim Royal Commission that examined the raupatu. land confiscations of the 1860s.8 The commission was prevented from inquiring into questions of the lawfulness of the raupatu land confiscations and from considering the Treaty of Waitangi (1840), one of the founding documents of New Zealand. Consequently, the Sim Commission found that the land confiscations were not unjust in themselves, but that they had been excessive, an indication of the extent of official denial at the time.

Cultural denial is a form of denial that is neither wholly private nor officially organized by the state. Whole societies slip into collective modes of denial not dependent on a totalitarian and coercive form of thought control. Without being told what to think about, and what not to think about, and without being punished for knowing the wrong things, societies arrive at some unwritten agreement about what can be publicly acknowledged. This happens more often in democratic societies.9

The classic case of cultural denial in Australia was the prevailing colonial doctrine of terra nullius, which advocated that countries without political organization, recognizable systems of authority, or legal codes could be legitimately annexed because the country was a territory with no sovereign authority where no land tenure system of any sort existed. This collective cultural denial was not officially challenged until the 1992 High Court decision of Australia in Mabo v. Queensland.10 175 CLR 1.] The High Court reinterpreted the Australian common law property regime by ousting the previously relied upon fiction of terra nullius. Legal precedents do not necessarily change attitudes, however, and a culture of denial is still prevalent in Australia, reinforced perhaps by rejection of the implications of recognizing historic Indigenous rights. The former chief justice of Australia, Sir Harry Gibbs, is reported to have said:

One can only conjecture, for example, what effect might be given in legal proceedings to the presumption that Aboriginal peoples were the original occupiers and custodians of Australia.11

On 26 May 1997, then-Prime Minister John Howard gave a public, personal apology to the Aboriginal people for the injustices of past generations, but then went on to say that Australian history was not one of imperialism, exploitation, and racism.

Another example of cultural denial is the attribution of contemporary Indigenous socio-economic conditions and cultural pain to Māori and First Nations laziness, inability to cope with the modern world,12 or even to some genetic inferiority rather than seeing them as a consequence of land and culture loss, abuse in schools, and diminution of traditional values and institutions. This denial of the connection between past injustice and present disadvantage is a form of historical denial.

Historical denial is particularly powerful when it is combined with official denial sanctioned by the state. The classic example in New Zealand was the 1877 case of Wi Parata v. Bishop of Wellington, in which Chief Justice Prendergast held that on the foundation of the colony, Māori were without any kind of civil government or any settled system of law, notwithstanding evidence and case law to the contrary. The decision held that Māori were primitive barbarians with no body politic capable of granting cession in the Treaty of Waitangi 1840, which Prendergast deemed a simple nullity.13 3 NZ Jur (NS) SC 72. In R v. Symonds [1847] N.Z.P.C.C. 387, the Court asserted that whatever the strength of native title, it is entitled to be respected, which was at the time the strongest judicial recognition of Aboriginal title in the British Empire. Over the next thirty years several New Zealand cases followed the Symonds’ approach including the Kauwaeranga Judgment [1984] 14 VUWLR 227. Moreover, in re The Lundon and Whitaker Claims Act 1871 [1872] 2 NZCA 41, 49 the Court of Appeal held that the Crown was bound to a full recognition of Native proprietary rights.] In light of this precedent, the New Zealand judiciary had no jurisdiction to entertain any Māori claims and grievances based on the Treaty of Waitangi until the Treaty of Waitangi Act 1975 signified that the political and legal culture of denial articulated in Wi Parata was over, at least in official discourse.

One final observation on denial must acknowledge the manifestations of denial common within Indigenous communities. In his seminal work, Paulo Freire discussed why people often internalize oppressive values.14). Pedagogy of the Oppressed. Translated by Myra Bergman Ramos. London, UK: Penguin.] Freire theorized how oppressed peoples struggle for their liberation and, in the process, internalize the image and the guidelines of their oppressor. In her famous speech of 2000, Tariana Turia referred to Indigenous peoples suffering from the trauma of colonization, which she branded post-colonial traumatic stress disorder. Turia asked people to consider the continuing oppressive effects of colonization and the various forms it has taken, including oppressing one’s own people. Indigenous people, therefore individually and collectively, like the colonizers, need to overcome the politics of denial within their communities if they are to engage fully in processes of reconciliatory justice.


Reconciliatory Justice

Reconciliatory justice as a concept and model of practice endeavours to reframe conflict and grievances so that parties are no longer preoccupied with that which divides them. As a locus, reconciliatory justice creates space for encounter where diverse but connected concerns driving conflicts and grievances can meet and be reconciled. The primary goals are to seek innovative ways to address, integrate, and embrace the painful past and to imagine a shared future. To be sustainable, reconciliation must be based on society-wide networks and mechanisms that promote restoration, reparation, and the rebuilding of appropriate relationships to empower the powerless.

Jean Paul Lederach proposes that key concepts of truth, mercy, justice, and peace provide a framework for understanding the process of peace-building through reconciliatory justice.15 Reconciliatory justice provides a place for truth and mercy to meet, where exposing harsh realities is balanced with acceptance and even forgiveness to permit renewed relationships. The need to give time and place to justice, redressing wrongs, and peace to envision a common connected future is recognized. Reconciliatory justice as a paradigm thus develops relationships that will provide new ways to address impasses on issues, with space for grieving the past and achieving reorientation toward the future. Reconciliatory justice creates new lenses for dealing with the past, present, and future. In the case of Indigenous peoples residing within democratic states, the observation of Canadian Chief Justice Lamer is pertinent: “Let us face it, we are all here to stay.”16 3 S.C.R. 1010:186, per C.J. Lamer (Supreme Court of Canada).]


Justice as Process—Not an Event

Concretely, doing reconciliatory justice can be distilled into at least eight giant steps along the path of reconciliation. Among other things, my suggestions here serve to highlight that achieving reconciliatory justice between the nation-state and Indigenous peoples is a process, not an event, and a dynamic and fluid one at that. Such processes never end; forgiveness and peaceful co-existence may be achievable, but as Paul Havemann asserts: “to forget the past is to run the risk that the culture of denial will reassert itself and allow history to repeat itself.”17 The process and outcome must therefore assist to overcome the politics of denial, to empower the powerless, and to establish a new, more appropriate relationship based on development as freedom, among other things. The eight key steps for accomplishing reconciliatory justice—the promotion of social justice through reconciliation—include:

  1. Recognition: truth-finding and telling of the injustices;
     

  2. Responsibility: the acknowledgement of responsibility for injustices;
     

  3. Remorse: a sincere apology for injustices;
     

  4. Restitution: the return of Indigenous lands and resources and power to determine their uses;
     

  5. Reparation: recognizing that many harms are untouched by compensation that addresses injustices in financial terms;
     

  6. Redesign of state political-legal institutions and processes: empowering Indigenous peoples to participate in their own governance and the government of the state;
     

  7. Refrain: the assurance that past injustices and similar present and future injustices will not be repeated; and
     

  8. Reciprocity: the obligation on the harmed to do unto others as one would have them do unto you.


Recognition: Truth-Finding and Truth-Telling

Hearing testimonies of suffering and systemic injustice, preferably in direct encounters, should trigger moments of truth. It is during these moments that human beings should be motivated to genuinely utter “it is wrong” and to see the demands of justice in a new light. Through the feelings of shame that are generated, a moral responsibility for what went wrong in the past may be acknowledged. Perpetrators and, later, those who engage in denial need to understand what they have done, to whom, and with what subsequent effects. No matter how painful, truth-telling and truth-hearing are the first steps and fundamental requirements for reconciliatory justice and the reconstruction of society based on peaceful co-existence. The question of what to do about what happened in the past can then be addressed.18 One important justification for amicably settling such grievances today is that, among other things, those who continue to benefit from past injustices on the backs of Indigenous peoples are vicariously liable.

The Waitangi Tribunal, established in 1975, is New Zealand’s Truth and Reconciliation Commission. As an institution, it has played a crucial role in the truth-finding and truth-telling stages of Maori claims and in the settlement of Treaty of Waitangi grievances. The Tribunal processes downplay adversarial approaches to advance truth-finding, and the Tribunal Reports serve as documents for truth-telling in the public discourse, addressing legal, cultural, and historical matters.

The Waikato Raupatu Claims Settlement Act 1995 (WRCSA) is the outcome of a long process of truth-seeking and truth-telling through various petitions and deputations,19 including the 1926 Sim Commission, the Waikato-Maniapoto Claims Settlement Act 1946, the 1985 Report of the Waitangi Tribunal on the Manukau Claim,20 and the judgment of the New Zealand Court of Appeal in Tainui Māori Trust Board v. Attorney-General.21 2 NZLR, 513, 528 (CA).] Commenting on the “Preamble” of the WRCSA, the Waikato-Tainui legal advisor, Shane Solomon, noted:

What will be achieved?… is to get into the public record the real history of what happened to Waikato during the years before the wars, the effect of that war on our people and the results of the land confiscations.22


Responsibility: Acknowledgement

Acknowledgement is decisive in the reconciliation dynamic. The truth, the facts, and the subsequent effects of the unjust action or inaction are acknowledged. Acknowledgement is the cure for denial. It is one thing to know, yet it is a very different social phenomenon to acknowledge. Acknowledgement through hearing one another’s stories validates experience and feelings and represents a significant step toward restoration of the injured person and the relationship. Acknowledgement is what happens when private knowledge becomes officially sanctioned and enters into the public discourse. This is often what people want in the truth and acknowledgement phase of reconciliatory justice—not new information but some public recognition of what is already known.23 Through acknowledgement, dominant groups are induced to recognize and confirm past and present injustices. Particular negative emotions aroused by naming, blaming, and shaming can lead to steps being taken to make things right. Indeed, as Bruno Bettelheim commented, “What cannot be talked about can also not be put to rest; and if it is not, the wounds continue to fester from generation to generation.”24 If the reassertion of denial can be deflected, then comes the recognition of the possibility of doing justice and not just talking about it.

Solomon, representing Waikato-Tainui, heralded that “Our history will now be publicly acknowledged.”25 Accordingly, the preamble of the WRCSA acknowledges the history of the people of Waikato-Tainui in their quest for justice, and it records the detailed steps of the Crown in a litany of unsatisfactory outcomes from the petitions of the 1860s onward. The New Zealand Crown specifically acknowledged in the WRCSA that it unjustly invaded the Waikato,26 initiated hostilities against the Kïngitanga (Waikato-Tainui’s political movement of the 1850s), unjustly confiscated approximately 1.2 million acres of land from Waikato-Tainui iwi (tribes), and set in motion effects of the raupatu land confiscations that have lasted for generations.27 The WRCSA outlines the Crown acknowledgements:

The Crown acknowledges that its representatives and advisers acted unjustly and in breach of the Treaty of Waitangi in its dealings with the Kiingitanga and Waikato in sending its forces across the Mangataawhiri in July 1863 and in unfairly labelling Waikato as rebels?… The Crown acknowledges that the subsequent confiscations of land and resources under the New Zealand Settlements Act 1863 of the New Zealand Parliament were wrongful, have caused Waikato to the present time to suffer feelings in relation to their lost lands akin to those of orphans, and have had a crippling impact on the welfare, economy and development of Waikato?… The Crown appreciates that this sense of grief, the justice of which under the Treaty of Waitangi has remained unrecognised.28


Remorse: Sincere Apology

Giving and receiving a sincere apology for injustices, however long ago, is always an important step in the process of reconciliation. In its simplest form, an apology is a speech act, a form of oral communication from one party to another designed to carry out several specific simultaneous communicative and moral functions.29 Nicholas Tavuchis’ definition of a meaningful apology is instructive: “To apologise is to declare voluntarily that one has no excuse, defense, justification, or explanation for an action (or inaction).”30 Neil Funk-Unrau provides an impressive definition of an apology in the following areas:31

First, an apology clearly

“names a specific situation as a violation of the listener. A particular event is reframed and given meaning to validate the listener and acknowledge the pain of the listener as legitimate?… [which] creates a space for further healing and reconciliation by allowing the victimizer to express respect for the victim’s memories of pain and hurt. The recognition and acknowledgement of the painful event according to the terms perceived by the victim can transform the trauma of victimization into a process of mourning which includes both apologizer and listener, thereby beginning the rebuilding of relationships.”32

According to Trudy Govier and Wilhelm Verwoerd,33 acknowledgement is the most crucial aspect of the reconciliatory justice process, providing a basis for moving through the rest of the process and toward potential future reconciliation.

Second, the event is named in terms that clearly specify that the apologizer takes responsibility for the damage done to the listener. Janet Schmidt notes that an acknowledgement of wrongdoing has a positive impact on both speaker and listener; it not only provides the support and affirmation needed for the healing of the listener but also allows the speaker to address the guilt and marginalization that may have been felt as a consequence of the original event.34 Susan Alter adds to this the importance of expression of profound remorse and the assurance or promise that the wrong will not recur.35

Third, an apology implicitly acknowledges and reinforces the impossibility of undoing the harm that has been done.36 The moral asymmetry between the speaker and listener is further heightened by the recognition that no future action can remove this asymmetry. Herein lies the ambiguity and the power of the apology process as Tavuchis states: “We are faced, then, with an apparently enigmatic situation in which the offender asks forgiveness as the necessary and symbolic corrective for a harmful action on the flimsiest of grounds: a speech act that is predicated upon the impossibility of restitution.”37 By offering the apology without justification or defence, the speaker deliberately takes on the vulnerability of moving the speech encounter toward an unknown end point.38

Fourth, through these aspects, the apology process institutionalizes a symbolic exchange whereby the speaker provides a social legitimation of the pain of the listener and the social and moral norms held by the listener in the hope that the listener will respond in some reciprocal fashion. Apologies have been described as “the exchange of shame and power.”39 Roles are reversed as the apologizer is deliberately placed at the mercy of the listener who may or may not accept the apology.

Fifth, the entire speech act and the response of the listener become a necessary ritual of making things right, even as both parties agree that no action can ever make everything right again. Moving toward forgiveness and reconciliation is possible through effective and remorseful communication occurring between the parties on verbal, symbolic, and ritual levels. Bernard Mayer refers to “emotional resolution” as an important component of conflict resolution.40 This emotional resolution may only be possible if the work of an apology has been effectively done.

To be effective, an apology should be perceived as sincere, a quality that is difficult to measure. Mark Gibney and Erik Roxtrom provide an extensive list of criteria for ascertaining a sincere and effective apology that includes publicity, ceremony, and understanding of the motives and context of the harms done.41

Publicity through media coverage of an apology by a government to an Indigenous group is important as an indication that the issue is considered to be a particularly pressing one. Moreover, public coverage is imperative for including and engaging the intended audience of both victims and their victimizers, and the persons listening are vicariously represented. Ceremony befitting such an event signifies the importance and seriousness of what is taking place. Both publicity and ceremony contribute to understanding within the implicated audiences.

An important question that the victimizer group issuing the apology can ask itself is why they did what they did. The apology should advance an understanding of the relationship between the victimizer and victim and consequently modify the victimizer’s potential for repeating the injury and the victim group’s continuing vulnerability. Policies to enforce assimilation in New Zealand and Canada have been the cause of numerous injustices, including the land confiscations in New Zealand and the residential school system in Canada. A proper and sincere apology would question not only the unjust actions or inaction but also the root causes of injustices, among other things, the master discourses of assimilation, the ideologies of superiority, and the culture of denial. A sincere apology may even begin a meaningful national debate on these and other root causes.

Apologies have become a standard part of the negotiations dealing with the past in New Zealand, commencing with the Waikato Raupatu Claims Settlement Act in 1995. Standard Deeds of Settlement in New Zealand name the injustices against Indigenous peoples, provide brief histories of those breaches, acknowledge governmental guilt and liability, and then through the apology clear this guilt and liability. The standard settlement apology in New Zealand lists the acknowledged injustices and then states:

Accordingly, the Crown seeks on behalf of all New Zealanders to atone for these acknowledged injustices, so far as that is now possible, and, with the?… [historical grievances] finally settled as to matters set out in the Deed of Settlement signed on … [date] to begin the process of healing and to enter a new age of co-operation with … [Māori tribes].42

The use of the word atone is significant; to atone means to “make amends; expiate (for a wrong).” 43 I would add that the definition must also include the notion of bringing one back into a former position or re-establish the status quo ante, however unrealistic and impossible it may seem in post-colonial states. But an apology assumes that the historical grievance is finally settled and therefore non-Indigenous peoples’ guilt and liability are also settled. From a cynical point of view, contemporary treaty settlements may be viewed as one way to release non-Indigenous peoples from liability for historic injustices. By assigning colonial racism to the past through contemporary acknowledgements and apologies, people are, perhaps, able to enter a new age without having to look at present practices or institutions and the cultural denial they perpetuate. As Sir Douglas Graham in New Zealand asserts:

The goal is to restore the relationship so that all New Zealanders can face the future without looking back at the problems of the past.44

Still, one of the most important aspects of the WRCSA was the formal apology, part of which is provided here:

The Crown expresses its profound regret and apologises unreservedly for the loss of lives because of the hostilities arising from its invasion, and at the devastation of property and social life which resulted.45

The apology was in both Māori and English, and it acknowledged that the Crown acted unconscionably and in repeated breach of the principles of the Treaty of Waitangi in its dealings with Waikato-Tainui. Importantly, the apology confirmed the validity of the claim that Waikato-Tainui land was confiscated and acknowledged that the people of Waikato-Tainui suffered grave injustices over generations. Then-Prime Minister The Right Honourable Jim Bolger officially presented the apology at Turangawaewae Marae (a tribal meeting centre) in Ngaruawahia46 on 22 May 1995 to Dame Te Ata-i-Rangikaahu (the Waikato-Tainui and Māori Queen) during the annual Kingitanga Koroneihana (coronation) celebrations. The signing was witnessed by the Honourable Doug Graham for the Crown and Sir Robert Mahuta for Waikato-Tainui, and significant Māori gifts were exchanged to seal the event and signify its importance.47

Importantly, on 3 November 1995, Queen Elizabeth II, New Zealand’s head of state, personally visited Wellington to sign the Waikato Raupatu Claims Settlement Bill and endorse the apology by the government on behalf of the Crown to Waikato-Tainui for the military invasion, loss of life, and confiscation of their lands in 1863. Solomon stated that Queen Elizabeth’s signing and endorsement of the WRCSA and apology were immensely symbolic, given that on two prior occasions the Waikato-Tainui monarchy, through King Tawhiao and King Te Rata, unsuccessfully sought redress from two British monarchs, Queen Victoria and King George.48 On signing the WRCSA in 1995, the granddaughter of the former British monarchs was endorsing the WRCSA with an official apology to the granddaughter of the former Waikato-Tainui monarchs.49

The magnitude of the Waikato-Tainui apology cannot be overstated, given that it sets a course to finally overcome the political and legal denial, at least officially, that hitherto existed in New Zealand about Waikato-Tainui. Furthermore, the formal apology goes a long way to restoring harmony after 132 years of pain and injustice. For many of the Waikato-Tainui Elders, the recognition, responsibility, and remorse aspects of the reconciliatory justice process were the most important parts in terms of cultural, spiritual, and political healing and reconciliation. The apology does not, however, mean that the people of Waikato-Tainui forget the past, but it does provide the Crown with an opportunity to make amends and for Waikato-Tainui and the Crown to move on with the healing process in a new relationship. While official denial has been symbolically overcome, the task of achieving understanding and overcoming cultural denial by the settler population and even among some Māori is still to be achieved.


Restitution of What Was Misappropriated

The concept of restitution is the next step in the process of reconciliation and is important as an alternative to retribution. Restitution is a traditional notion to which many Indigenous peoples subscribe. Restitution assumes the continuing co-existence of the harmed and the perpetrator of the harm, although with an altered balance of power.

Restitution involves the restoration of what was taken to right the imbalance caused by injustice. The perpetrator of the harm must restore to the extent that the unjust actions or inactions have deprived the harmed. However, the ability of governments and non-Indigenous peoples to meet these demands poses acute difficulties. Demands for the return of lands and natural resources that are under public and private control, for making amends for depriving people of life, sustenance, liberty, culture, language, and religion over centuries, for the subsequent individual and communal effects of such actions or inactions, and for restoration of traditional governance institutions in the twenty-first century go to the core of nation-state law and sovereignty, policy, and practice. They are simply impossible to satisfy fully.

Restitution of the status quo ante is not always possible, but approximate justice for the purpose of reconciliation is available. Still, a genuine and sincere effort for restitution must be made by the perpetrator of the harm to the harmed. Trust in a relationship develops through concrete actions, not words alone. Concrete actions show that groups are listening to each other and respecting and understanding each other in the quest for reconciliation.

The preamble of the WRCSA states: “Waikato pursued compensation on the?… established principles of … ‘i riro whenua atu, me hoki whenua mai’ (‘as land was taken, land must be returned’)”50 Moreover, the Crown recognizes the significance of the land-for-land principle, and both parties agreed that the Crown should make full and final restitution to Waikato in respect of the raupatu claim.51 The Act further states that the Crown holds only a small portion of the land originally confiscated.52 Consequently, the best the Crown could do in terms of approximate justice was to restore all public lands owned by the Crown within the raupatu land confiscation boundaries. The Crown originally restored the full ninety thousand acres to Waikato-Tainui under the WRCSA, but then Waikato-Tainui gifted back to the Crown fifty thousand acres for the benefit of all New Zealanders; hence, the restitution of land amounted to approximately forty thousand acres53 with the Crown retaining the rest, mostly as conservation land. A permanent Waikato-Tainui representative, however, sits on the Waikato Conservation Board to assist in managing its use. The settlement does not restore the Waikato River to Waikato-Tainui54 (which is significant for historical, ceremonial, economical, and other cultural reasons) nor have interests in sub-surface minerals been restored.


Reparation: Compensation

An apology and acknowledgement of past injustices, although critical, are not enough; reparations are an official gesture of remorse and must be part of any meaningful reconciliation process, particularly where full restitution is impossible. Without some form of reparation, apologizing for a historical wrong is an empty gesture. Repentance without compensation serves only to make the apologizer feel good while minimizing benefits for the victim.

Reconciliation that can lead to a culture and relationship of trust also requires that reparations include monetary compensation. Reconciliation must include concrete deeds and can never be a cheap word or an abstract process. Symbolic reparation is essential, including an apology and/or some other culturally appropriate intervention,55 but the importance of symbolism does not minimize the need for concrete and financial reparations.56 The key questions are how much, how to quantify compensation, who pays, who are the people and groups today to receive compensation, and do communities as well as individuals receive compensation? Again, full compensation in terms of quantified damages is not always possible, which is where approximate justice re-emerges.

Another guiding principle of the WRCS was kei te moni hei utu mo te hara—the money is acknowledgement for the crime.57 The Crown has acknowledged the raupatu land confiscation injustice and its subsequent effects on Waikato-Tainui as a people. Given that a guiding negotiating principle for Waikato-Tainui was land for land, which was impossible, compensation was accepted as reparation for these non-compensable harms. Redress in financial terms amounted to $170 million plus interest on the principal sum of the settlement, resulting in approximately $215 million.

Furthermore, it is vital to acknowledge that ethnocidal and genocidal injustices cannot be adequately compensated financially, but reparations that improve the socio-economic circumstances of Indigenous peoples will bring benefits to society at large. Failing to do so will result in ever-increasing economic, social, and political costs to the state.58


Redesign of State Legal and Political Institutions

Reconciliation can only come after appropriate resolution of the grievances. Once the grievance has been settled, however, it is not the end. As noted above, reconciliatory justice is a process, not an event. Contemporary settlements are but frameworks for a solution, because the intergenerational impacts of the raupatu confiscations and treaty injustices in New Zealand and child abuse in residential schools in Canada do not disappear overnight. A framework is required for healing to take place that includes official and unofficial policies, laws, and institutions that allow all sectors to work together. What is required is the redesign of state laws and institutions to be more accommodative of, inclusive of, and respectful of the other, particularly Indigenous peoples as the nation’s first citizens.

For Waikato-Tainui, the power to make decisions that affect peoples’ lives was paramount. The WRCSA and institutional redesign were intended to give Waikato-Tainui this power. A new relationship between the Crown and Waikato-Tainui was established based on trust, respect, and dignity. Consequently, state political and legal institutions were redesigned to empower the people to effectively participate in their own governance and the government of the nation-state. The statutory Tainui Maori Trust Board has been abolished and the people of Waikato-Tainui have collectively agreed, by tribal plebiscite, on the mode of post-settlement self-governance through the Kauhanganui o Waikato Inc. (literally, the Great Council of Waikato), drawing on three representatives from each of the sixty-three marae (tribal meeting places) of the settlement.59 The significance of this new governance institution is that the Māori Land Court does not retain jurisdiction over the Kauhanganui o Waikato (the tribal Parliament), it now being accountable to the tribe collectively and not to the Crown as in the past.

Furthermore, the WRCSA vests in some of the lands that were under the first Māori King (1858), the late Potatau Te Wherowhero, and subsequently returned to Waikato-Tainui. Under this new tribal land title, no individual can succeed to such lands. The lands are vested in three custodial trustees and can be alienated by them only with the agreement of seventy-five per cent of the beneficiary marae (tribal meeting houses), a level of endorsement that would be very difficult to secure. Moreover, land under Te Wherowhero title cannot be alienated under the Resource Management Act 1991. Neither the Māori Land Court nor the Waitangi Tribunal retain jurisdiction over matters dealt with under the WRCSA.


Refrain from Repeating Similar Injustices

Reconciliatory justice and peaceful co-existence require that the perpetrating state and the people it represents refrain from repeating injustices of the past. Those who have suffered harms want reassurance that they will not become victims again, and they want some assistance in overcoming the effects of past harmful actions or inactions. The process of reconciliation does not end with the publication of an apology or the signing of an agreement.

Reconciliation should not merely uncover the wrongs of the past, but anticipate present and future wrongs as well. One of the challenges with resolving historic injustices against Indigenous peoples is correcting the power imbalance that gave rise to the injustice in the first place. The imbalance is often reflected even in the process where amends are being made, with the state exercising power to decide if and when an apology will be made as well as the manner and extent of restitution. Models of institutional design and the norms embedded in these models are intended to prevent the repetition of external domination over Indigenous peoples’ affairs.


Reciprocity: To Forgive

Once Indigenous groups have been through this protracted, yet vitally empowering process, I argue that there remains an equally vital duty for them to perform: to forgive the perpetrators of past injustices. By the government’s act of apologizing, of offering restitution and reparation, its representatives are taking a position of vulnerability. Indigenous peoples are empowered to respond in any way desired.

When the state sincerely asks the aggrieved Indigenous group for forgiveness, relinquishing control of the tone and terms of reconciliation, the Indigenous people are put in a position of exercising some real authority in the matter. Indigenous peoples can then question the sincerity of the state and conclude whether the reconciliation process that has been offered is sufficient or not. Often, however, people are reluctant to take on such a responsibility to make right and to forgive. Granted, forgiveness for decades, sometimes centuries, of injustice is not easy. But, for the future development of the Indigenous group, the people must forgive the perpetrator so that they can move forward. Both the Crown and settlement groups must seek not simply to restore but to transform.

Māori have a traditional customary law called utu which was and continues to be an integral part of Māori society. Utu has been linked closely to notions of vengeance, but it also has quite neutral or even benign connotations of reciprocity in many contexts.60 Utu means to give as one has been given, to restore and preserve balance in the universe. However, utu does not just mean reciprocating the equivalent of what one was given but actually giving more in return.61 Utu is not only for restoring mana (individual and group honour, respect, intrinsic strength) but indeed increasing mana. An important concept directly associated with utu is ea, whereby both the offended and offending parties accept that the debt is repaid and the matter is finally settled.

Māori customary laws and institutions thus embodied ideals, hopes, and potential as well as a longing for harmony and reconciliation. The same ideals must be incorporated collectively as an integral component in the reconstruction of society based on peaceful co-existence. Such traditional Indigenous customary laws need to continue to apply in the twenty-first century with Indigenous peoples; in this context, forgiving the offending governments for past and present injustices so that balance is restored to their world.

Forgiveness, however, does not mean forgetting the past. In fact, the grievance and settlement process need to be memorialized so that history will be instructive for future generations and the culture of denial will be prevented from reasserting itself. As George Santayana warned, “those who cannot remember the past are condemned to repeat it.”62


Conclusion

Both Canada and New Zealand are engaged in confronting the legacy of their colonial history, acknowledging massive violations of human rights, seeking resolution of long-standing land claims, and making reparation for injuries that reverberate throughout successive generations of Indigenous peoples. Edward Taihakurei Durie, former chief judge of the Māori Land Court, has commented that the resolution of Indigenous peoples’ grievances requires broad and expansive thinking, ingenuity in long-term planning, humanity and compassion, vision, strength, and courage.63

This paper has proposed reconciliatory justice as an essential process for overcoming the politics of denial and building a healthy, inclusive nation where cultural diversity is accepted and celebrated and where space is provided for Indigenous peoples’ development as freedom. While there are many parallels between issues for resolution and the paths being explored in our two countries, there is no ideal or immediately transferable solution to the deep-seated and complex challenges that we face. Notwithstanding the weaknesses and contradictions of existing models, Māori experience in seeking to achieve reconciliatory justice and the analysis set forth above may provide some guidance for a greenstone door as the Canadian Truth and Reconciliation Commission sets out on its mission.



Biography

Robert Andrew Joseph was the second M?ori in New Zealand—and the first Māori male— to graduate with a PhD in Law. He graduated from the University of Waikato in 2006. He has served as senior legal researcher and research fellow at the university’s Te Mätähauariki Research Institute since 1998.

Robert’s research interests are many and varied: Canadian Indigenous studies; the interface of traditional M?ori knowledge systems and western science; dispute resolution processes, particularly with respect to resolving disputes between different cultures; and Māori history and its interface with the Anglican, Catholic, Mormon, Wesleyan, and Methodist churches. He is currently writing a biography of his paternal tupuna (ancestors), who fought at the famous 1864 Battle of Orakau during the Waikato Wars. As part of his research on Indigenous self-governance models and contemporary treaty settlements, Robert travelled extensively throughout Canada and the United States to meet with Aboriginal people.

In his article, Robert discusses reconciliatory justice and its potential to make a meaningful contribution to the reconciliation process being contemplated in Canada. He begins with an enlightening discussion of the politics of denial, elaborating the multiple ways in which individuals, governments, and institutions can repress disturbing information or neutralize its implications. He annotates eight steps in the reconciliatory justice process, and the examples he provides from New Zealand’s Waikato-Tainui Claims Settlement are informative and relevant to the Canadian situation. In his conclusions, Robert highlights the similarities between the Canadian and New Zealand experience:

       Both Canada and New Zealand are engaged in confronting the legacy of their colonial history, acknowledging massive violations of human rights, seeking resolution of long-standing land claims, and making reparation for injuries that reverberate through successive generations of Indigenous peoples.

He concludes with a reminder that while similarities may exist, solutions are not necessarily transferable, nor should they be. Still, a great deal has been presented in this thoughtful article by an informed scholar for Canadians to learn from and reflect upon.


Notes
  1. Mead, Nā Hirini Moko and rāua ko Neil Grove (2001:137). Ngā Pēpeha a ngā Tāpuna: The Sayings of the Ancestors. Wellington, NZ: Victoria University Press.
  2. Sen, Amartya (2000). Development as Freedom. New York, NY: Alfred A. Knopf.
  3. Cohen, S (1995). Denial and Acknowledgement: The Impact of Information About Human Rights Violations. Jerusalem, ISRAEL: Centre of Human Rights, Faculty of Law and the Harry S. Truman Research Institute for the Advancement of Peace, Hebrew University. See also Cohen, S (2001). States of Denial: Knowing About Atrocities and Suffering. Cambridge, UK: Blackwell Publishers.
  4. Turia, Tariana (2000). What Tariana Turia said – in full, New Zealand Herald. Retrieved November 2007 from: online at http://www.nzherald.co.nz/topic/story.cfm?c_id=146&objectid=149643 [emphasis added
  5. See for example, Young, Audrey (2000). Minister hammers colonial ‘holocaust’ (August 30); Holocaust remark sets Race Relations Office’s phones ringing (September 1); ‘Holocaust’ MP considered quitting job (September 13); and Turia apologises over ‘holocaust’ statement (September 5), New Zealand Herald. Retrieved November 2007 from: http://www.nzherald.co.nz
  6. Cited in Gifford, A. (ed.) (2000:6). nga korero o te wa: A monthly summary of Maori news and views from throughout Aotearoa 10(12).
  7. Cohen (1995:25).
  8. In 1926, the New Zealand Government established a Royal Commission to inquire into confiscated land and other grievances under Justice Sir William Sim, Vernon Reed, a legislative councillor, and William Cooper, a Māori of Wairoa. See the Appendices to the Journal of the House of Representatives (1928:G7).
  9. Cohen (1995).
  10. Mabo and Others v. Queensland [1992
  11. Lane, B., ‘Dangers lurk in new preamble’ in Sydney Morning Herald, (12 July 1999).
  12. Ballara, A. (1986). Proud to be White? A Survey of Pakeha Prejudice in New Zealand. Auckland, NZ: Heinemann Publishers.
  13. Wi Parata v. Bishop of Wellington [1877
  14. Freire, P. (1996 [1970
  15. See generally Lederach, J. (1997). Building Peace: Sustainable Reconciliation in Divided Societies. Washington, DC: United States Institute of Peace Press.
  16. Delgamuukw v. British Columbia [1997
  17. Havemann, P. (1999:55). Reconciliation and Discrimination: Indigenous peoples, colonisation and the state in the ‘old Dominions’ (Australia, Canada and New Zealand). In A Dialogue on Indigenous Rights in the Commonwealth. Conference Proceedings, Institute of Commonwealth Studies, University of London.
  18. See generally Zehr, H. (1990). Changing Lenses: A New Focus for Crime and Justice. Scottdale, PA: Herald Press.
  19. To cite some examples, in 1884, King Tawhiao led an unsuccessful deputation to England to petition Queen Victoria for grievances between M?ori and the Crown including the raupatu land confiscations. In 1907 King Mahuta drafted a petition to King Edward asking that Māori be put on the same footing as Pakeha (mainstream non-Māori); and in 1914 King Te Rata visited England requesting Imperial Government intercession. See Dictionary of New Zealand Biography. Retrieved 22 January 2007 from: http://www.dnzb.govt.nz/dnzb/
  20. See the database of the Waitangi Tribunal and its Reports at http://www.knowledge_basket.co.nz//topic (retrieved November 2007).
  21. Tainui Maori Trust Board v. Attorney-General [1989
  22. Solomon, S. (1995:4). The Waikato Raupatu Claims Settlement Act: A Draft Users Guide to the Act as at 28 October 1995, Hamilton, NZ: Tainui Maori Trust Board.
  23. Cohen (1995:29).
  24. Bettelheim, B. cited in Danieli, Y. (2000:para. 9). Healing Components: The Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law. If Not Now e-Journal 1(Winter). Retrieved 23 January 2008 from: http://www.baycrest.org/If_Not_Now/Volume_1_Winter_2000/default_7160.asp
  25. Solomon (1995:4).
  26. New Zealand Government (1995). Waikato Raupatu Claims Settlement Act 1995. Retrieved 23 January 2008 from: http://www.legislation.govt.nz/act/public/1995/0058/latest/DLM369893.html?search=qs_act_Waikato+Raupatu+Claims+Settlement+Act+1995&sr=1
  27. New Zealand Government (1995).
  28. New Zealand Government (1995:15–16).
  29. Tavuchis, N. (1991). Mea Culpa: A Sociology of Apology and Reconciliation. Stanford, CA: Stanford University Press; Govier, T. and W. Verwoerd (2002). The Promise and Pitfalls of Apology. Journal of Social Philosophy 33(1):67–82.
  30. Nicholas Tavuchis cited in Amnesty International (2005:s. 4.4.1) Japan: Still Waiting After 60 years: Justice for Survivors of Japan’s Military Sexual Slavery System. Retrieved 23 January 2008 from: http://www.amnesty.org/en/alfresco_asset/9e349608-a2ec-11dc-8d74-6f45f39984e5/asa220122005en.html
  31. Funk-Unrau, N. (2004). Potentials and Problems of Public Apologies to Canadian Aboriginal Peoples. Conference Paper, Conflict Resolution Network Canada, Kitchener, Ontario, 2–4 June 2004. Retrieved 23 January 2008 from: http://io.uwinnipeg.ca/~msc/downloads/MSC_research_funkunrau1.pdf
  32. Barkan cited in Funk-Unrau, N. (2004:2). Potentials and Problems of Public Apologies to Canadian Aboriginal Peoples. Conference Paper, Conflict Resolution Network Canada, Kitchener, Ontario, 2–4 June 2004 (retrieved 23 January 2008 from: http://io.uwinnipeg.ca/~msc/downloads/MSC_research_funkunrau1.pdf). See also Barkan, E. (2000:323). The Guilt of Nations: Restitution and Negotiating Historical Injustices. Baltimore, MD: The Johns Hopkins University Press; and Brooks, R. (ed.) (1999). When Sorry Isn’t Enough: The Controversy Over Apologies and Reparations for Human Injustice. New York, NY: New York University Press.
  33. Govier and Verwoerd (2002).
  34. Schmidt, J. (2002). The Place of Confession in Restorative Justice. Vision: A Journal for Church and Theology 3(Fall):54–59.
  35. Alter, S. (1999). Apologising for Serious Wrongdoing: Social, Psychological and Legal Considerations. Ottawa, ON: Law Commission of Canada.
  36. Minow, M. (1998). Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence. Boston, MA: Beacon Press.
  37. Tavuchis, N. (1991:34).
  38. Schneider, C.D. (2000). What It Means To Be Sorry: The Power Of Apology In Mediation. Mediation Quarterly 17(3):265–280.
  39. Lazare, A, (1995:42). Go Ahead, Say You’re Sorry. Psychology Today 28(1):40–46.
  40. Mayer, B. (2000:104). The Dynamics of Conflict Resolution: A Practitioner’s Guide. San Francisco, CA: Jossey-Bass.
  41. Gibney, M. and E. Roxtrom (2001). The Status of State Apologies. Human Rights Quarterly 23:911–939.
  42. See the Waikato apology in the Waikato Raupatu Claims Settlement Act 1995, part 1, s. 7.6 (retrieved 24 January 2008 from: http://www.legislation.govt.nz/act/public/1995/0058/latest/DLM369893.html?search=qs_act_waikato+raupatu+claims+settlement+act&sr=1); the Waikato Deed of Settlement, clause 3.6; and the Ngāi Tahu apology in the Ngai Tahu Claims Settlement Act 1998, s. 4 and the Deed of Settlement, clause 2.18. See also s. 3, Ngāti Turangitukua Claims Settlement Act 1999.
  43. Canadian Oxford Dictionary, Second Edition (2004). Don Mills, ON: Oxford University Press Canada.
  44. Graham, D. (1997:94). Trick or Treaty? Wellington, NZ: Institute of Policy Studies.
  45. Waikato Raupatu Claims Settlement Act 1995, part 1, s. 6.2.
  46. Ngaruawahia was the Waikato-Tainui tribal capital of the Kingitanga in 1858 prior to the British invasion.
  47. The Crown gifted the fabled and valuable Korotangi carved rock bird that was carried on the Tainui waka migration from Eastern Polynesia circa 1350 and Waikato-Tainui reciprocated with ‘Te Raupatu’ a precious jade article.
  48. King Tawhiao led an unsuccessful deputation to visit Queen Victoria in 1884 and likewise King Te Rata to King George in 1914. See note 23.
  49. Solomon (1995:2).
  50. Waikato Raupatu Claims Settlement Act 1995, Clause O, Preamble.
  51. Waikato Raupatu Claims Settlement Act 1995, Clause S (b) and (c), Preamble.
  52. Waikato Raupatu Claims Settlement Act 1995, Clause W, Preamble.
  53. Tainui Maaori Trust Board (1995). Tainui Maaori Trust Board Annual Report 1995. Hamilton, NZ: Tainui Maaori Trust Board.
  54. Waikato-Tainui is currently negotiating for the settlement of the historical claims to the Waikato River, which was confiscated as part of the raupatu confiscations following the wars in the 1860s. Te Kauhanganui, the tribal parliament signed an agreement in principle on 16 December 2007. See the Agreement in Principle at www.tainui.co.nz/docs (retrieved December 2007).
  55. Examples in New Zealand and Canada include the repatriation of cultural property from museums and governments.
  56. Orr, W. (2000). Reparation Delayed is Healing Retarded. In C. Vicencio and W. Verwoerd, Looking Back Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa. Cape Town, SA: C. Villa-Vicencio, W. Verwoerd, and University of Cape Town Press: 239–249.
  57. Waikato Raupatu Claims Settlement Act 1995, Clause O, Preamble.
  58. See for example, New Zealand Institute of Economic Research (2003). Māori Economic Development: Te āhanga Whanaketanga Māori. Wellington, NZ: New Zealand Institute of Economic Research Inc. (retrieved 25 January 2008 from: http://www.tpk.govt.nz/publications/docs/economics/mdr_final.pdf); Coates, K. (1995). Summary Report: Social and Economic Impacts of Aboriginal Land Claims Settlements: A Case Study Analysis. Prepared for British Columbia Ministry of Aboriginal Affairs (retrieved 25 January 2008 from: http://www.gov.bc.ca/arr/reports/arasumm.html); and Anderson, R.B. (1999). Economic Development among the Aboriginal Peoples of Canada: The hope for the future. Toronto, ON: Captus Press Inc.
  59. Waikato Raupatu Claims Settlement Act 1995, sections 27–29.
  60. Te Mātāhauariki Institute (2007). Te Mātāpunenga: A Compendium of the References to the Concepts and Institutions of Māori Customary Law. CD compiled by Richard Benton, Alex Frame, and Paul Meredith. Hamilton, NZ: Te Mätähauariki Institute and University of Waikato.
  61. See Firth, R. (1959). Economics of the New Zealand Māori. Wellington, NZ: R.E. Owen. (retrieved 25 January 2008 from: http://www.questia.com/PM.qst?a=o&d=62842657); Walker, R. (1990). Ka Whawhai Tonu Matou: Struggle Without End. Auckland, NZ: Penguin Books; and Salmond, A. Between Worlds: Early Exchanges Between Māori and Europeans, 1773–1815. Auckland, NZ: Viking Press.
  62. Santayana, G. (1954:1905–1906). The Life of Reason: or The Phases of Human Progress (5 vols.). New York, NY: Charles Scribner’s Sons.
  63. Durie, E, (1991). Waitangi: Justice and Reconciliation. Second David Unaipon Lecture, School of Aboriginal and Islander Administration, University of South Australia, Adelaide, 10 October 1991. Retrieved 25 January 2008 from: http://www.knowledge-basket.co.nz/oldwaitangi/press/91unaipo.HTM