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	Murdoch University Electronic Journal of Law

Dedicated Parliamentary Seats for Indigenous Peoples: Political Representation as an Element of Indigenous Self-Determination

Editors’ Note: The author, Catherine Iorns Magallanes, was a contributor to the first volume of E Law which appeared in 1993-4. She graciously consented to provide this article to help mark the 10th anniversary of the founding of this journal.

Author:	Catherine J Iorns BA, LLB (Hons), LLM (Yale) Senior Lecturer, Victoria University of Wellington Faculty of Law
Issue:	Volume 10, Number 4 (December 2003)

Contents:

• Introduction
• Separate political representation as a part of self-determination
• The Maori Parliamentary Seats in New Zealand/Aotearoa
• Establishment of the Maori seats
• The first 20 years - 1867-1887
• Maori representation 1887-1935
• 1935 – today
• Reviews of the Maori seats
• Indian representation in the Maine State Legislature, United States of America
• Achieving self-determination through representation
• Example: Recent review of Maori Representation in New Zealand/Aotearoa
• Australian Proposals for dedicated indigenous seats
• New South Wales 1998 Report
• Dedicated Seats as a form of Self-Determination
• Queensland 2003 Report
• Issues Paper
• Queensland Final Report
• Political Parties
• Indigenous Community Cabinets
• More Major Structural Changes
• Lessons for Australia
• Conclusion
• Notes

Preface
I am delighted to be able to contribute to this 10th Anniversary issue of E Law, the Murdoch University Law School’s Electronic Journal of Law. I enjoyed my time as a lecturer at Murdoch University (1992-1995) and am thankful to those who worked there then for positively contributing to my welfare, both professionally and personally. While special mention can go to many people for different things (though probably none more so than Ralph Simmonds, an excellent Dean for so many years), this occasion is to mention Archie Zariski. Archie has been involved with E Law from its inception and first issue, right through until today. Archie’s calm manner and attention to unfailingly getting the task done has served E Law (and Murdoch Law) well. I congratulate him and all those involved with E Law on achieving this milestone, and wish them many more in the future.

Introduction

1. Ideas about what constitutes indigenous self-determination are still evolving. A key focus of indigenous debate over self-determination has been on forms of self-government. One aspect that has been gaining attention amongst indigenous peoples world-wide is shared government, involving separate indigenous political representation.

2. In Australia, indigenous peoples have argued that dedicated parliamentary seats should be set aside for Aborigines and Torres Strait Islanders at both federal and state levels. While politicians have rejected this at the federal level, it is being discussed at the state level. For example, a 1998 NSW Legislative Council Inquiry recommended that a detailed proposal for such a system be developed and put to a state referendum;[1] a 2003 Queensland Parliamentary Committee Inquiry has recommended that this issue be considered in the future if other less extreme measures fail to improve indigenous peoples’ political participation in the state.[2]

3. The model of representation most commonly cited as a precedent for the establishment of separate indigenous parliamentary seats is that used in New Zealand/Aotearoa. This model has been in existence since 1867 and its experience has been discussed widely. It is widely regarded as being effective at protecting Maori interests in parliament. However, it has also been argued within New Zealand that the system of separate Maori parliamentary seats be abolished. Further, despite the system effectively protecting Maori interests in parliament, the philosophical and structural underpinnings of the system are not necessarily consistent with other aspects of Maori self-determination today.

4. In this paper I focus on the relevance of self-determination for indigenous political representation. I suggest that this issue has been neglected in the debate over indigenous participation in political processes. While the concepts of self-determination are often purported to frame the debate, they have not informed the choices made over options discussed during the debate. I argue that decisions on indigenous political representation have to be better informed by consideration of the methods of best achieving indigenous self-determination.

5. In Part I consider arguments for separate political representation as a form of self-determination. In Part II I describe the history and operation of the New Zealand/Aotearoa system of separate Maori parliamentary seats. In Part III I briefly describe the system of indigenous delegates in Maine, United States of America, and contrast it with that in New Zealand. From such comparisons, in Part IV I identify basic issues to be discussed in the establishment (or review) of any system of separate political representation for indigenous peoples. Most notable is that different definitions of self-determination will often lead to different aims and objectives of any system of representation. These can (and should) thus lead to different features incorporated within such systems of representation.

6. In Part V I address the recent debates in Australia over adoption of separate indigenous seats in NSW and Queensland. I focus on the contribution to the formal debate of considerations of indigenous self-determination and their impact on the resulting proposals. I conclude that separate political representation can be used as an effective tool to achieve indigenous self-determination in Australia, but that a vision of indigenous self-determination and what it entails in Australia must be agreed upon first.

   Separate political representation as a part of self-determination

7. In modern liberal democracies democracy is identified with the concept of majority rule.[3] However, the fear of abuse of power by the majority has also given rise to constitutionalism, designed to limit the power of those in government. Such limits restrain and control the exercise of authority by restricting the scope of majority rule, the substance of matters to be ruled upon and/or the procedure by which majority rule can be effected.[4]

8. Despite such restraints on democratic majorities, minorities -- and indigenous peoples in particular -- complain that they are insufficient. They complain both that their human rights have been infringed and that they need positive protection for the existence of their group. They argue that traditional, individualistic conceptions of democracy are insufficient for the protection of group needs and rights and that different approaches and measures need to be adopted.

9. Both indigenous peoples and political theorists have identified various possible alternative approaches, ranging from separate government to special accommodations within national governments. Those special accommodations include, inter alia, measures of autonomy (akin to models of federalism), guaranteed parliamentary representation, entrenched rights, veto powers, and proportional voting systems.[5] They don't pretend to remove or assimilate the differences between groups but regulate possible conflict between them through democratic devices.[6] The result is power-sharing at a national level and group veto rights in certain circumstances, proportionality, and autonomy at the sub-national level.

10. However, some of the devices suggested by political theorists as being appropriate are not necessarily applicable to indigenous peoples.[7] While they may appear on the surface to be applicable, their reliance on the existence of political elites may make it difficult -- or at least slow -- to implement in many countries with indigenous peoples, because of the historical exclusion of such peoples from national politics.[8]

11. One democratic device that indigenous peoples are increasingly arguing for is guaranteed political representation. This is argued as necessary for indigenous participation in mainstream local and national politics and thus in decisions that concern them at the highest political level.[9] Only through such high-level political participation, they argue, will their rights be able to be protected – both the traditional, liberal, individualistic human rights and the more contentious modern concepts of group rights.

12. From another angle – one which focuses more on the group than the individual -- the debate on indigenous self-determination has also resulted in calls for increased representation for indigenous peoples within mainstream politics. It is argued that a key aspect of indigenous self-determination is self-government. For most indigenous peoples, self-determination will be exercised through self-government within the states in which they live rather than through secession and formation of an independent indigenous state. So discussion has turned to how to achieve self-determination through self-government within the modern democratic state.

13. In this respect, indigenous peoples have argued that self-government entails control over internal and local affairs. Especially where the indigenous peoples do not exercise complete autonomy, many of these internal affairs are currently governed by the wider mainstream government. And even where indigenous peoples exercise degrees of local autonomy, their physical location within the wider state necessarily entails that a wider range of matters which concern them are decided outside that sphere of autonomy. Thus, in order for indigenous peoples to be self-governing and to achieve self-determination, they need to hold a greater degree of control within the mainstream state. As control is exercised from the top, they argue that they need to be participating in the decisions at the highest political levels. From a self-determination perspective, this needs to be a guaranteed feature of the constitutional and political landscape and not one left to the whim of non-indigenous voters. Such participation thus needs to be enshrined in constitutional legislation as guaranteed political representation.

14. Thus, both democratic theory – primarily designed to protect the rights of individuals -- and self-determination theory -- designed to protect the group as well as the individuals in it -- have suggested the same conclusion. Indigenous peoples need some form of guaranteed political representation at the highest levels of mainstream politics and government, at local and national levels.

15. In countries which have systems of separate indigenous political representation, such systems have been labelled as forms of expression of self-determination. For example, it has been suggested that that the current Maori parliamentary seats in New Zealand/Aotearoa are an integrationist, but not assimilationist, model of sovereignty.[10] In Maine, USA, the current system of First Nations tribal delegates has been defended as a part of Indian First Nation self-determination.[11]

16. The following Parts of this paper detail these examples of indigenous political representation. They describe the features of these systems, identify aspects which contribute to the systems being labelled as forms of indigenous self-determination, and identify aspects that could be improved so as to better achieve indigenous self-determination.

    The Maori Parliamentary Seats in New Zealand/Aotearoa

    Establishment of the Maori seats

17. In the mid-1800’s in New Zealand there had been various proposals for Maori political representation, but which had been abandoned for various political reasons.[12] Special parliamentary representation was sought for Maori because the vast majority of Maori males were not then eligible to vote on the general electoral roll. To be on the electoral roll males were required to hold a minimum amount of private property,[13] whereas nearly all Maori then did not own property individually but communally.[14] In 1867, because of a convergence of political factors, a political bargain was made whereby Maori gained four dedicated parliamentary seats.

18. It is interesting to note why Maori succeeded in gaining representation in 1867 when they had not succeeded earlier. The first reason is that it was seen as a quid pro quo for special gold diggers’ representation in the South Island. (The gold diggers were not private landholders either, but they were numerous and desired a vote and participation in their local political issues).[15] Second, the special Maori seats were seen as a temporary measure only, to be used while Maori communally-owned land was transferred to individual title.[16] It was envisaged that, when Maori males held individual land titles, they would satisfy the property requirement for the general franchise and thus enrol on the general electoral roll.[17] Thus the 1867 Act stipulated that the Maori seats were to last for only five years.[18] In 1872 it was extended for another five years, and then extended indefinitely in 1876.

    The first 20 years - 1867-1887

19. In the first [20] years the system for the selection of the Maori representatives was noticeably different from that for the general members of Parliament. There was no registration of voters nor individual polling to choose representatives.[19] Meetings to chose the Maori representatives were held in the electorates, conducted in Maori, and votes were by a show of hands of the whole meeting.20 The choice of MP’s was dominated by iwi (tribe) and hapu (sub-tribe) politics -- that is, by solely internal, Maori issues and affiliations.[21] Participation by Maori grew rapidly[22] and election as a Maori MP became “a matter of considerable personal and tribal mana” (authority and prestige).[23]

20. In the first 20 years, none of the Maori representatives chosen spoke English, while Parliamentary proceedings were not translated for them. Interpreters were bought in especially for them to speak on the parliamentary floor when requested, or when the settler MPs wanted to negotiate with them for their votes. But the Maori representatives did not actually participate greatly in parliamentary business. The perception was that the Maori representatives were like ambassadors or delegates from Maoridom more than participants in the government of the country. Sorrenson comments that “in Parliament the Maori voice was often ineffectual on matters of vital importance to them,” particularly the sale of Maori land to settlers,[24] and were “very often ignored or ridiculed when they did speak on important Maori matters.”[25] He concludes: “the Maori members were little more than a token representation that enabled the pakeha members to salve their consciences while also relieving the Maori of much of their remaining land and autonomy.”[26]

21. By the end of this period, the existence of the Maori seats had been extended indefinitely for two reasons. First, the settlers and their MPs were afraid that their votes and/or seats would be diluted by a huge influx of Maori onto the general electoral roll.[27] There were approximately 50,000 Maori, whereas only 3,500 settlers elected each general parliamentary seat. Maori voters could have significantly altered election results in some general electorates. The second reason is that Maori thought that their interests were better protected by separate, guaranteed representation.[28] Maori wanted their separate seats; they simply wanted more than 4 MPs. For example, at 3,500 electors per seat, Maori would have had 14 seats instead of 4.

    Maori representation 1887-1935

22. In what is commonly called the ‘second phase’ of Maori electoral representation, there were various suggestions for the abolition of the 4 seats, but they were retained for the same reasons outlined above.[29] Interestingly, in 1896, the property qualification for the general roll was abandoned, but instead of thereby allowing Maori to go on the general roll, Maori were required by law to vote in Maori electorates.

23. In terms of the representatives and methods for election in the second phase, most noticeable was that English-speaking Maori were elected. This greatly increased the ability of the Maori MPs to participate in parliamentary proceedings and influence government policy.[30] Further, in the show-of-hands voting in groups was abolished. However voting was still not completely by secret ballot: oral declaration of votes (with interpreter) was required.[31] There was still no Maori electoral roll.[32]

    1935 – today

24. From 1935 the Maori seats became part of mainstream politics. The Labour party began to endorse candidates for Maori seats; party politics entered the choice and campaigning of the Maori MPs; the Maori electoral roll was established and secret ballot papers were used. Notably, however, it was not until 1975 that Maori got the option of enrolling on the general roll, and it was not until the 1990s when the number of Maori parliamentary seats became proportional to the number of Maori electors.[33]

25. So the system of separate Maori seats in New Zealand effectively began as a means to disenfranchise Maori, early selection of representatives was a solely internal Maori affair - one more according to Maori than to settler politics and processes - and delegates were more ambassadors to - than seen as part of - parliament. This parliamentary representation was not seen by either Maori or settlers as a form of Maori self-determination. But both the features of the system of representation and the perceived part that the representation plays in Maori self-determination has changed slowly over time. Today:
    - candidates may or may not be affiliated to the area they stand in;
    - the choice of candidates to run is often made for national political strategic reasons;
    - voting is individualised;
    - voters’ choice is based much less on tribal politics (eg, compared with the 1800s) and more on individual candidates’ qualities and party affiliations.
    

26. In terms of the features of the system of Maori representation, what we have now is not a traditionally Maori system but a mainstream system for choice of the Maori seat representatives. Yet, conversely, the perception at least among Maori is that the system of Maori seats plays an important part in Maori self-determination today. There are various factors that have led to this change – particularly in the perception of its self-determination role – which are discussed below.

    Reviews of the Maori seats

27. There has been one major review of the Maori seats and two more minor ones, all of which have assessed the desirability of the system of Maori representation. First, the Royal Commission on the Electoral System in 1986 listed the advantages and disadvantages of the Maori seats. In their favour were that: - Maori wanted to retain them (this was a clear result of submissions by Maori);[34] - the seats had symbolic significance through having a special position under the Treaty of Waitangi; and - Maori interests were best protected by Maori decision-makers. The Maori seats were seen as contributing to Maori self-determination largely through being a symbol of Maori’s special status as a Treaty partner and thus partner in government (though the Royal Commission did not actually refer to the standard of self-determination).

28. However, the results in practice suggested that this form of self-determination was purely symbolic and not actually effective. For example:
    – the then current representation was ineffective at actually protecting Maori interests;
    – there were various practical issues that contributed to the ineffectiveness, such as the unwieldy size of Maori electorates (making them difficult for the Maori MPs to sevice);
    – Maori MPs copped the blame for problems of the system; and
    – it gave the appearance that mainstream MPs therefore only represented non-Maori.

    Further, the lack of proportionality of seats to the Maori population clearly showed that the symbolic significance of the Maori seats was limited: the Treaty partners were clearly not equal.

29. For these reasons, the Royal Commission recommended the abolition of the Maori seats and their replacement with the system of Mixed Member Proportional representation (MMP) that it was recommending for the general electoral system. The Commission considered that this would require all political parties to look to Maori interests in order to get elected. The predicted results were that Maori would be better off because their interests would be better protected and because society would become more cohesive as a result of all MPs being responsible for outcomes for Maori. Notably, the Royal Commission did expect that more Maori would become MPs and thus become decision-makers in parliament even without the Maori seats. This was because, under MMP, the party lists would have to become more representative of the population as a whole, with Maori therefore appearing on the lists and entering Parliament at least that way, if not also through being elected to electorate seats. The standard of Maori self-determination was not referred to, but it appears that the Royal Commission was focusing on effective protection of Maori interests, while also keeping in mind that there would be Maori decision-makers assisting in that protection.

30. The Parliamentary Electoral Law Reform Select Committee, in reviewing the Royal Commission’s recommendations, decided instead to keep the Maori seats. This was because of the three advantages identified by the Commission, outlined above.[35] This resulted in the introduction of MMP in 1996, plus retention of the Maori seats, plus proportionality of the number of Maori seats to the Maori electoral population. This can be said to be the best of both worlds in terms of representing Maori interests in parliament.

31. In terms of results, the predictions of the 1986 Royal Commission have come true. The party lists put forward at each election from 1996 have had reasonable Maori representation on them, in electable positions, across the political spectrum. The most recent review of Maori representation – that undertaken by the MMP Review Committee in 2000-2001 – has confirmed that this is the case.[36] Whereas, before the introduction of MMP there were only 7 Maori MPs (7.1% of the Parliament), after both the 1996 and 1999 MMP elections there were 16 Maori elected (13.3%), six of whom were from the dedicated Maori seats.[37] In 2002, that increased to 18 Maori MPs (15% of the Parliament), seven of whom are holding Maori seats. [38] The proportion of Maori MPs is now almost identical with their proportion in the general population.[39] Moreover – and possibly most importantly – Maori MPs have been placed in positions of power within political parties and in all three MMP governments, including being given Ministerial portfolios. Overall, the Maori MPs are widely regarded as having raised the profile of Maori issues within New Zealand/Aotearoa. Through this publicity and their numbers and positions in government and the House, they have achieved improvements to laws and policies that relate to Maori interests, and to the actual living conditions of Maori generally. They are said to have achieved some of the goals of Maori self-determination.

32. The 2001 review of the Maori seats, while it could not agree to make any recommendations to keep the Maori seats, was also unable to make any recommendations to abolish them.[40] In 2003, the (Opposition) National Party leader, Bill English, argued that the Maori seats were no longer needed, now that MMP had delivered Maori Members of Parliament. This produced some public debate over the retention of the Maori seats for a short while, but it didn’t even last the year out.[41] The seats still stand and look likely to do so for a while to come.

33. Today separate Maori representation has come to be seen as linked to status under the Treaty of Waitangi, to Maori identity and to Maori rights generally. This is very different from 1867. With the Maori members from electorate and especially the list seats, the Maori seat MP’s have changed the face and dynamics of Parliament. Yet we should still be asking whether this form and function reflects their purpose – ie. the reason we give for having them. For example, do they embody an appropriate concept of indigenous self-determination? The need for discussion of such issues becomes more apparent when one looks at both the history of the Maori seats, for example, and at different ways other systems of indigenous representation have been devised.

    Indian representation in the Maine State Legislature, United States of America

34. In Maine in the United States the two largest Indian First Nations in the State have provided one “tribal delegate” each to the Maine state legislature since the early 1800’s.[42] The delegates really are that: delegates or ambassadors from the Indian Nations to the State. They are not elected through State election processes and they are not members of the State Parliament.[43] They get paid the same sitting allowances and have access to the same parliamentary resources; they can even speak on the floor, sponsor legislation and serve on parliamentary committees. However, because they are not MPs they cannot vote on legislation.[44]

35. There are mixed feelings among the Indian First Nations about the value of this system. They agree that participation in and influence on laws and policies that affect them has been valuable. So has the increase in visibility of Indian issues. But there is a debate between, on the one hand, those who consider that, to be really effective, you need to have full voting powers as Members of the State Parliament; and, on the other hand, those who stress the recognition of Indian sovereignty.

36. The delegates themselves would like more power – they want full voting rights and Parliamentary Membership, but as tribal delegates (ie, rather than having to be elected through the general electoral system).[45] However, this would fall foul of the US Constitution.[46] Other avenues for increased representation are being evaluated. But one legally acceptable method – that of gerrymandering electorates to include, eg, all of an Indian nation’s reservation within an electorate – is impractical in this particular situation. The number of Indian voters is too small, for example, to provide a majority of Indian voters in either a Senate or House district, and certainly too small to ensure that a First Nation candidate is elected through the general State electoral process.[47]

37. An alternative view posed is based on First Nation sovereignty and self-determination. Sovereignty is relevant here for two reasons. First, sovereignty to the Indian First Nations suggests government-to-government relations with other nations. That is, the Indian representatives are delegates to the Maine parliament, rather than members of the parliament, because the State parliament is the parliament of a separate nation. Thus, membership of the parliament, whether through special appointment or election under the State’s electoral system, is completely inappropriate.[48] Second, sovereignty suggests that the Indian Nations choose their own delegates through internal processes, rather than through State-run elections or other State processes.[49] According to these arguments, Indian self-determination is achieved by respecting First Nations’ inherent sovereignty, which means keeping the appointment of First Nations delegates to state legislatures outside the state electoral system.

38. The First Nation delegates currently have more rights and privileges in the House than they have had historically, but this debate over their desired future is still unresolved.

    Achieving self-determination through representation

39. Even these brief descriptions of New Zealand’s and Maine’s systems can help with devising (or reviewing) a system of separate indigenous political representation. They help primarily by illuminating different aspects of the systems that might be considered necessary for indigenous self-determination, including competing ideas of what self-determination might require at the level of implementation and detail. This enables one to focus on issues that need to be addressed in the creation (or review) of any such system. For example:

    1) What is the aim (or aims) to be achieved: Is it making indigenous opinions heard in government? Is it making indigenous opinions count in terms of adopting laws and policies? Is it recognising indigenous sovereignty?
    2) How would these aims best be achieved, both in terms of practical matters (eg, population size and density) and conceptual (eg, visions of self-determination)?

40. For example, even if recognition of indigenous sovereignty is an internationally-consistent aim, what is required to achieve it may actually be very different in New Zealand or Australia from that required in the USA. Under American law, Indian nations are constitutionally separate with their own law-making powers; they are not constitutionally under State law. Thus, sovereignty in the USA suggests ambassadorial delegates. In contrast, Maori sovereignty and self-government in New Zealand/Aotearoa has been interpreted differently. In constitutional terms Maori have loosely-defined rights under the Treaty of Waitangi to tribal autonomy and control of tribal matters, but joint control and governance in the nature of a partnership over matters of common concern.[50] This suggests the retention by Maori of a separate identity as a distinct partner, yet also inclusion together in a law making body, and thus not separate ambassadorial relations. Thus, despite an apparent similarity between the US and Australian federal constitutional structures, I suggest that the current Australian constitutional position is closer to New Zealand’s than America’s in respect of indigenous issues.

41. The other aspect of sovereignty exercised in Maine – internal control over selection of delegates – suggests that we should be discussing such issues when considering how best to achieve the aims identified. For example, in the New Zealand context, what is the mandate for the Maori seats? They have the appearance of implementing Treaty guarantees, and their retention is argued on that basis, yet the process for selecting the representative is nothing like a Treaty-based process. Only when contrasting today’s procedures with, for example, those employed in the 1800’s, or those employed in Maine today, do we realise how mainstream the current processes for election of Maori representatives really are. At the moment, I do not see another model available for use in New Zealand/Aotearoa, because the current Treaty models are so contested.[51] But a review of the seats should consider the more fundamental issues like this, not just the more superficial survey of current opinions on retention. Similarly, any establishment of separate Aboriginal representation in Australia needs to consider such fundamental issues.

    Example: Recent review of Maori Representation in New Zealand/Aotearoa

42. In April 2000 the New Zealand Parliament established a committee to review the operation of the MMP electoral system: the MMP Review Committee. One of its terms of reference was to review “the provisions of the Electoral Act 1993 dealing with Maori representation.” The Committee released its report in August 2001.[52] The Committee considered nine specific issues under this term of reference, including whether the guaranteed Maori seats should be retained or abolished. Unfortunately, the Committee was unable to agree on this key issue and failed to make recommendations on two key aspects of the review of Maori seats.[53] There are major flaws in the way that the Committee conducted its review of Maori representation. The key flaw is that there is almost no discussion of principles or standards by which to evaluate Maori representation. Instead, the Committee’s review, as reported, is solely submission-led. For example, the issues addressed by the Committee and the discussion reported is solely in response to submissions put to it. Unfortunately, without such a principled base for discussion of the issues raised, the discussion itself was flawed.[54]

43. For example, in discussion of the boundary delimitations of Maori seats, the issue arose of population tolerance between Maori electorates. This came out in the suggestion that Maori communities-of-interest not be split by election boundaries. The implication for electoral law is that there should be a high tolerance of differing population levels between Maori electorates, to take account of the need to keep a Maori community together in the same electorate. It was suggested that the current tolerance level of ? 5% was too narrow and resulted in the splitting of Maori communities between different Maori seat electorates. I suggest that this issue raises the whole aim and purpose of the Maori seats and that this needs to be discussed in order to adequately resolve the issue of population tolerance levels. For example, if the purpose of recognising partnership obligations under the Treaty of Waitangi was considered an important aim of the Maori seats, then issues of sovereignty and Maori authority becomes relevant. Then the first priority would be to recognise and keep together iwi and hapu affiliations (as traditional seats of decision-making and authority). Under a treaty-based model, this would be key, and there is room to argue that the tolerance level need not be the same as for the general seats. If, however, the Maori seats were seen more as a guarantee of their minority representation, under a mainstream individualistic Maori and special minority protection model, then the communities of interest are not as important and the tolerance level could remain low. Because the aim and purpose were not discussed, the default paradigm for consideration was the mainstream model, and thus the Committee agreed that the tolerance level for Maori seats should remain the same as for general seats.

44. This example of a lack of consideration of principle and how it might play out in application to Maori representation continues throughout the Committee’s review of Maori representation.[55] I consider that this review was totally inadequate and that any future review – especially one which might make substantial changes – must take indigenous self-determination into better account.

    Australian Proposals for dedicated indigenous seats

45. In Australia there have been two detailed reports considering whether or not to adopt dedicated indigenous seats in state parliaments. Neither of these reports identified a concept of self-determination to then use in order to evaluate the dedicated seats proposal. In this Part I summarise these reports and their recommendations, and discuss their recognition and use (or not) of the concept of self-determination.

    New South Wales 1998 Report

46. In November 1998 the New South Wales Standing Committee on Social Issues of the New South Wales Legislative Council issued a Report entitled ‘Enhancing Aboriginal Political Representation: Inquiry into Dedicated Seats in the New South Wales Parliament’.[56] The Report solely concerned assessing the desirability of enacting legislation to provide dedicated Aboriginal seats in the Parliament of New South Wales.[57] The Committee found that Aboriginal people were clearly under-represented at all levels of government and determined that “a just and equal society requires the representation of indigenous people in the NSW Parliament.”[58] The conclusions accordingly sought “to provide ways to enhance Aboriginal participation in the political process, both as political representatives and as voters.”[59] The Report, while not able to recommend establishment of separate Aboriginal seats at that time, recommended that detailed proposals for such seats be developed and put to a future referendum. It described issues relevant to various options, discussed advantages and disadvantages of the options, and recommended how a detailed proposal might be developed. Its other recommendations concerned alternative and interim measures for increasing indigenous political participation generally.[60]

47. The NSW Report is well researched and its deliberation and recommendations explained in detail. The Committee undertook extensive research into Australian Aboriginal political representation.[61] It undertook comparative research on such systems in New Zealand, USA and Norway.[62] After publishing an Issues Paper in 1997 summarising this research, in 1998 the committee consulted widely among the Aboriginal and wider communities. This consultation and its results are described in the final report.

48. The mechanics of dedicated seats are discussed in detail, including issues such as number and location of seats and processes for election of candidates. It was on these issues that Aboriginal people were notably divided, and “no overall consensus about a particular model for dedicated Aboriginal seats” could be obtained.[63] For example, opinions differed in respect of the method of selection of candidates, and over the creation of Aboriginal electoral districts and Aboriginal electoral rolls.[64] The Committee also discusses alternative ways to improve Aboriginal political representation, including results of submissions on this topic. While it noted that most participants at consultation meetings preferred dedicated seats, they also felt that other measures should be adopted in addition to the seats.[65]

    Dedicated Seats as a form of Self-Determination

49. The Committee does not discuss self-determination as a concept or what it might entail in terms of indigenous political representation. The term “self-determination” is mentioned three times in the report, but only when reporting submissions.[66] And this is despite submissions arguing that whether dedicated seats would further self-determination for indigenous peoples would depend on how it was done.[67] This concept could have provided a framework for discussion of the arguments for and against dedicated seats, as well as for discussion of the mechanics of such seats. For example, the issues identified concerning implementation of dedicated seats are at least similar to those identified in New Zealand and the USA. Discussion in Parts III and IV above shows how a vision of self-determination is relevant to resolution of the issues concerning mechanics.

50. Interestingly, the discussion of the arguments for and against dedicated seats identify elements of indigenous self-determination, they just aren’t labelled as such. For example the arguments identified include: Aboriginal contribution to decision making processes, recognition of Aboriginal peoples’ historical position and colonisation, reconciliation, recognition of distinct Aboriginal rights, providing a voice for Aboriginal people in government, the power of the Aboriginal community, democracy, the relationship between Aboriginal peoples and other minority groups, and marginalisation and tokenism. All of these relate to Aboriginal self-determination and how they are considered will be affected by one’s vision of what self-determination should entail.

51. The Committee could well have structured its thinking and its report around the concept of self-determination but presumably deliberately chose not to. Instead, it preferred to adopt the notions of equity and justice as requiring indigenous political participation.[68] I can understand the Committee’s reluctance to propose a system of dedicated seats, given the disagreement in the community over them. And I can certainly understand the conclusion that they arrived at given the disagreement. But a more explicit theoretical framework is necessary for the development of any dedicated seats proposals. If the theoretical framework is not explicitly discussed, it is hard to assume other than that the status quo prevails – that is, that the measures to be adopted are within the prevailing liberal democratic framework. This is even more likely when concepts of equity and justice and used instead of self-determination.

52. There are lots of measures that could increase indigenous political participation in state government, including affirmative action type measures. Mere increased participation does not obviously require dedicated seats. But such other measures are more likely to assist with assimilation of indigenous peoples into the existing system rather than furthering indigenous self-determination. It thus may only be through consideration of the wider theoretical framework that a proposal to establish dedicated indigenous seats could be developed.

    Queensland 2003 Report

53. In September 2003 the Legal, Constitutional and Administrative Review Committee (LCARC) of the Legislative Assembly of Queensland published its report Hands on Parliament: A Parliamentary Committee Inquiry into Aboriginal and Torres Strait Islander Peoples’ Participation in Queensland’s Democratic Processes.[69] The scope of the Committee’s enquiry was to consider the participation of Aboriginal and Torres Strait Islander peoples in all democratic processes in Queensland, including the possibility of special representation for Aboriginal and Torres Strait Islander peoples at the state government level. As part of the process of the review, the Committee produced an Issues Paper in December 2002 for consultation and discussion,[70] and undertook a public consultation and submission round. In contrast with the NSW Committee, the LCARC does identify indigenous self-determination right at the beginning of both the Issues Paper and the final Report. However, it does not later utilise the concept in order to evaluate the various options it discusses for indigenous political representation.

    Issues Paper

54. In the Issues Paper, under the heading ‘Self-Determination’, the Committee expressly quotes the Reconciliation Council’s identification of self-determination and political participation as key elements to reconciliation. The Committee, however, discusses those two elements as being completely separate, and states that “the Committee’s current enquiry relates to the second of these” – ie, it was concerned with political participation but not with self-determination. The Committee does note that self-determination and political participation “complement each other” and expressly “recognises the importance of Aboriginal and Torres Strait Islander peoples’ right to self-determination as a means of protecting the distinct cultures of Indigenous peoples.”[71] However the rest of the discussion of self-determination in this section concerns autonomy in decision-making bodies and, at the end of this discussion, states: “While the committee acknowledges the importance of discussion about these matters, they are outside the scope of the current inquiry.”[72] The Committee clearly considers that self-determination is relevant to the broader picture of Aboriginal reconciliation, but does not see it as impacting on the Committee’s deliberations of political participation; indeed it is not mentioned again in the Issues Paper. And this is despite the concept of self-determination being expressed as having to do with autonomy in decision-making, which is highly relevant to political participation. Perhaps unsurprisingly, I disagree with this separation and suggest that the two concepts are actually inter-related. I suggest that one needs to have a clear concept of self-determination and what it actually might entail in order to evaluate the best means of indigenous political participation.

55. In relation to the different means of enhancing political participation discussed by the Committee, the Committee puts forward an excellent, comprehensive range of options for discussion and consultation. However, self-determination is not mentioned as possibly providing a means of evaluating the options or choosing between them. The questions about each option are phrased as: what would best “enhance” or “increase” participation by Indigenous peoples in the Queensland democratic processes,[73] whether a measure is “a good idea,” and “why or why not?”[74] I suggest that the use of concepts such as ‘greater’ and ‘enhanced’ indicate that the Committee is looking at more of a numerical or quantitative assessment of participation than qualitative. Further, if you want to assess whether a measure is “a good idea” then you need to have a clear, agreed-upon goal of indigenous political participation and representation. By not discussing what this goal might look like, it appears to be assumed that the current liberal democratic model -- which is the norm -- frames the goals to which we should all be striving. I have already provided arguments in previous sections why this is not sufficient for indigenous peoples’ political representation.

    Queensland Final Report

56. Despite the lack of attention in the Issues Paper to indigenous self-determination and what it might mean for political participation, submissions to the Committee clearly addressed this issue because they are discussed in the Committee’s Final Report. Self-determination is explicitly addressed in a separate section under the heading “Factors Affecting Participation”.[75] The Report cites Larissa Behrendt’s delineation of aspects of sovereignty and self-determination, including “[a]utonomy and decision making powers.”[76] Unfortunately, the Committee does not utilise this notion to help evaluate measures for increasing indigenous political participation. It notes the competing views of self-determination among submissions to the inquiry and simply leaves it at that:

    The concept of self-determination and participation in Westminster democratic processes are irreconcilable for some people. As noted above, for many Aboriginal and Torres Strait Islander people sovereignty has never been ceded and participation ‘in the various constructs of the Westminster system of government is seen as legitimising the colonial state and its institution and is therefore avoided.’ For others ‘[p]articipation in politics is a central pillar in notions of democracy and an important aspect in the right to self-determination.’

    The committee acknowledges the long-term aims of sovereignty and self-determination of indigenous peoples. [77]

    The Committee clearly adopts the latter view, that participation in democracy is a central pillar, but doesn’t delve any deeper into what ideas of self-determination might mean or the best form that participation might take. It does not look at what Behrendt’s concept of autonomy and decision making powers might entail.

57. The difference between contemporary liberal political processes and traditional Aboriginal governance is expressly considered as a factor affecting Aboriginal participation in the modern democratic system. The cultural difference was discussed by the Committee and acknowledged. However, the Committee’s response was simply that “Indigenous peoples’ participation in democratic processes is necessary to effect meaningful change.”[78] The options presented for enhancing indigenous political participation were merely ways of encouraging indigenous peoples to participate in the current system, without really changing the nature of the system. If a more principled approach was taken -- one which took account of this as an aspect of self-determination -- it could have the effect of modifying the current system to better reflect the indigenous traditions. Of course, this might not point toward any different result in terms of the measures chosen to be adopted by the Committee. It does not necessarily entail any separate Aboriginal parliament or separate parliamentary seats. But my concern is with the right process for considering what changes are required; if the process of decision making is not right, then the result cannot be ensured to be right.

    Political Parties

58. The Committee’s Recommendation 3 details specific actions to be taken by political parties to increase indigenous peoples’ participation in the political process. I suggest that the measures identified are necessary but not sufficient. Indigenous peoples comprise such a small percentage of the population, and of each electoral seat, that it will only be possible to elect Aboriginal people with broad mainstream community support, and ones that are thus much less likely to be identified with traditional Aboriginal community governance. It is not likely to enhance self-determination as discussed by Behrendt; indeed, it may be more likely to enhance the urban/traditional split amongst the indigenous peoples. If one aspect of self-determination is paying greater attention to indigenous issues in the mainstream political system, then these recommendations on political parties do provide one aspect of self-determination. But it is not the only one, and not the only way of achieving it. These are anti-discrimination -- or affirmative action -- measures for indigenous peoples to succeed within the existing system. In that sense it is a form of assimilation, as indigenous peoples are to participate in the existing liberal democratic system rather than the system changing to fit them in. Some changes are envisaged to party processes to make them more culturally appropriate for indigenous peoples and thus more accessible to them.[79] Such accommodations mean that the form of assimilation is not its most extreme, and could arguably instead be labelled as integration. However, albeit accommodated, I suggest it is closer to assimilation than self-determination as envisaged by concepts of autonomy in decision-making.

    Indigenous Community Cabinets

59. ATSIC submitted that “partnership” between the State and indigenous peoples ought to be an overarching goal of parliamentary reforms. The Committee took up this suggestion in respect of consultative processes to enhance direct input by indigenous peoples into policy and legislative processes. The Committee accordingly recommended[80] that a direct link be formed between indigenous peoples and Cabinet through the establishment of Indigenous Community Cabinets convened by the Premier for the purpose of direct input of indigenous views to the highest level of executive government.

60. I suggest that this is an example of consideration of a principle and aspect of self-determination (in this case, partnership) and then application of that principle to political processes. It finds a way of inserting the traditional into the mainstream, in a way than cannot be assimilation. Of course, it is clear that a mere consultative process is not enough to constitute a true partnership in decision making. But it is a valuable example of application of principle and of alteration to the mainstream system to better accommodate indigenous peoples.

    More Major Structural Changes

61. There were three more major structural changes to the Queensland political system evaluated by the Committee.

    An Aboriginal and Torres Strait Islander Assembly

62. Reasons put forward in favour of establishing an Aboriginal and Torres Strait Islander Assembly were all in support of indigenous self-determination (even though this term was not used).[81] However the Committee’s response was

    The committee cannot recommend creation of a separate assembly for Aboriginal and Torres Strait Islander people in the absence of widespread support for such a concept in consultation. There were stronger views put forward about active election of Indigenous peoples into Parliament than formation of a separate body.

    Dedicated Seats

63. The committee noted that dedicated seats has been recommended as part of Aboriginal self-determination and as “a central component of the reconciliation process.”[82]

64. Dedicated seats were the subject of much discussion and submission and public meetings. It is a concept which appeared to be readily understood, perhaps because of the New Zealand experience, and evoked strong and divergent responses.[83]

65. Because of the divergence of indigenous opinion, particularly strong opposition by some, the Committee felt unable to recommend their adoption. However, the Committee did recommend that “they be reconsidered if there is no improvement to the representation of Indigenous peoples in democratic processes as a result of the other recommendations contained in the report.”[84] This adoption of dedicated seats may be revisited in approximately nine years.

    Review of the Electoral System

66. The one issue in respect of which the committee did not follow the views of submissions was that of changes to the system of election of members of Parliament. The majority of submissions “advocated reviews of the current system.”[85] However, the committee simply rejected it without reasons[86] holding this over as part of the nine year review.

67. I suggest that the Committee’s responses to all three of these more structural changes illustrate the types of inquiry being undertaken. This was a political rather than a more independent and perhaps more academic enquiry. A political committee will likely require a clear public mandate before making or even recommending major constitutional changes. If such changes would be politically controversial within the non-indigenous community then politicians typically require at least the indigenous community to be nearly unanimous in support of the suggested changes before they will even consider recommending them. Further, where a change affects the politicians own jobs, such as a change to the way in which members of parliament are elected, it takes an overwhelming public mandate to recommend such a change. This type of mandate is not as likely to arise in respect of indigenous representation issues as in respect of inequality that affects the whole population.[87] I suggest that a more comprehensive, independent inquiry could have said a lot more about all three options for structural change in terms of achievement of indigenous self-determination.

    Lessons for Australia

68. Neither of the two reports considered in this Part have shown an understanding of the role that concepts of indigenous self-determination might play for enhancing indigenous political participation in Australia. The concept of self-determination is perhaps seen as too nebulous to provide concrete direction on specific reforms. I instead suggest that self-determination can provide an over-arching framework to help guide deliberation on the choice of measures for any reform designed to assist indigenous peoples. And this is especially where the reforms being considered involve the devising of systems and structures to represent indigenous peoples in government and political decision-making, which can be considered to be a prime sphere of application of self-determination.

69. By way of stark contrast, the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, issued by the Human Rights and Equal Opportunities Commission in 1997,[88] considered the concept of indigenous self-determination in great detail.[89] It defined the concept of self-determination as it was relevant to Aboriginal child welfare, and considered that concept along with the many submissions it received on what to do. The resulting recommendations reflected – or were even driven by -- the concept of self-determination that the Inquiry adopted. The theory provided the framework for the recommendations for action. The HREOC Inquiry shows that it can be done, if the will is there. This more clearly illustrates the difference between an inquiry run through the political process and one by an independent agency, where the political one is much more likely to be cognisant of public opinion than concerned with academic or principled coherence.[90]

70. What this suggests for the process to be followed from here, in relation to development of proposals for enhanced indigenous political participation in Australia, is that better attention needs to be paid to the requirements of indigenous self-determination. The first step, in keeping with autonomy of decision-making, would be to establish an indigenous body to discuss the best method of improving indigenous political representation. Interestingly, despite a lack of explicit attention to theoretical coherence, the NSW Parliamentary Inquiry identified precisely this as being the preliminary step to be taken in development of a more detailed proposal for dedicated Aboriginal parliamentary seats.[91]

71. The second step should be consideration of what indigenous self-determination might entail in terms of political representation in Australia. This can include assessment of the various overseas models already in existence -- their advantages, shortcomings and social and legal context. But the primary focus should be on issues specific to Australia, because the historical, social and legal contexts in each country are different, and thus the measures appropriate for implementing self-determination in each country will differ. If the body then chooses to develop a more detailed proposal for separate political representation – ie, dedicated seats[92] -- then the issues identified above in relation to New Zealand and the USA will need to be addressed. For example: what are Aboriginal visions of self-determination and what aims are trying to be achieved through establishment of separate Aboriginal representation? Is it making Aboriginal opinion heard, or count, and/or is it recognition of Aboriginal sovereignty? These all affect the numbers and powers of representatives or delegates. There is the issue of method of how the delegates will be elected or chosen. Will it be through internal Aboriginal processes or public ones? Then there are the practical issues such as the numbers of voters, concentration in existing electoral districts, and development of appropriate electoral rolls (etc).[93] The NSW Inquiry Report raised a number of issues to be discussed, but further work is still to be done, both at the level of detail and overall concept. I suggest that only if all of this is done well, will separate political representation be able to be used as an effective component of Aboriginal self-determination.

    Conclusion

72. My primary concern is process rather than substance. While substantive proposals must be discussed, it is the process for their development (or review) that concerns me. One of the most important parts of any review or development of a proposal is identification of the aims of the exercise. I suggest that any discussion of a proposal concerning the political representation of indigenous peoples requires the discussion of indigenous self-determination. Indigenous self-determination needs to be identified as part of the overall theoretical framework and thus as part of the goals of the exercise. In respect of indigenous political participation, the traditional liberal democratic framework may not be enough, especially in terms of achieving indigenous self-determination. But if alternative goals are not identified, then the status quo is likely to apply by default.

73. The example of the New Zealand/Aotearoa Maori seats illustrates the anomalies that can arise when a system is tinkered with without a clearly-identified and theoretically-coherent goal. The system of separate Maori seats was initially designed to disenfranchise Maori, while today it is performing well in terms of protection of Maori interests. In practical terms it is better than anything else that could be agreed upon if we were to start from scratch right now. However, the principled base or justification for the current system is unclear, and the recent review by the Parliamentary Select Committee has not helped clarify it. I suggest that the New Zealand system does need to be reviewed comprehensively: a review that considers the aim, purpose and theoretical coherence, and then evaluates alternatives according to a set of principles. Comparisons with alternative models -- such as in the USA -- are instructive if only for helping to find our principal aims and/or objectives.

74. My arguments apply similarly to any proposal in Australia for separate indigenous representation. Before such a system is devised, at the state or federal level, the kinds of issues I have identified above need to be discussed and resolved. My recommendations concern process rather than substance, but this is because the process taken in any exercise affects the substance arrived at as a result of the exercise. Only through explicit consideration of what indigenous self-determination entails is it likely that indigenous self-determination will result. If this is done well, separate political representation will be able to be used as an effective component of indigenous self-determination in Australia.

Notes

[1] See Parliament of NSW, Standing Committee on Social Issues, Enhancing Aboriginal Political Representation: Inquiry into Dedicated Seats in the New South Wales Parliament (Report No. 18, November 1998). This is discussed I more detail in Part V, below. Australia is not alone is considering such a system of representation. The American state of Wisconsin is in the process of adopting such a system for First Nations tribal delegates and the country of Colombia recently established one. Separate Aboriginal representation through separate electoral districts was recommended in Canada but that recommendation has not been pursued.

[2] Legal, Constitutional and Administrative Review Committee of the Legislative Assembly of Queensland, Hands On Parliament: A Parliamentary Committee Inquiry into Aboriginal and Torres Strait Islander Peoples’ Participation in Queensland’s Democratic Processes (Report No. 42, September 2003), Recommendation 24 on “Dedicated Seats,” at p.56.

[3] While it is justified in differing ways, it is recognised as being at least a practical requirement: while government may rest on the consent of all of the governed, effective government requires decisive decision-making, which is justified if it carries the support of a majority.

[4] There are many constitutional devices adopted to restrain majorities, including those that focus on the structure of the state (e.g., federalism), on the division of powers between different decision-making bodies (e.g., checks and balances, the separation of powers, and judicial review), on the structure of the legislative body (e.g., bicameralism), on the electoral system (e.g., proportional electoral systems), on decision-making processes within deliberative bodies (e.g., qualified majorities and veto rights), as well as on the substance of possible decisions (e.g., bills of rights).

[5] Two of the more popular models of democracy among political theorists are the closely-related consociational and consensus models, both of which aim to share and limit political power. The most significant work on both of these models is by Arend Lijphart. His most significant work on consociationalism is Democracy in Plural Societies: A Comparative Exploration (1977). His work which describes consensus democracy is Democracies: Patterns of Majoritarian and Consensus Government in 21 Countries (1984).

[6] In more detail, consociational and consensus democracy replace simple majority rule with the principle of proportionality, both in the creation and operation of governments. There are four commonly accepted characteristics that are designed to cumulatively share, disperse, distribute, delegate and limit political power: a coalition of the leaders of significant groups in the society, autonomy over local affairs. Neither consociational nor consensus democracy prescribes any particular constitutional model, although some constitutional features are clearly more conducive to consociationalism and consensus than others (for example, parliamentary rather than presidential systems, election on the basis of proportional representation rather than first-past-the-post, and federalism rather than unitary states, where regional autonomy is adopted for geographically-based groups). See Lijphart, Democracy in Plural Societies, at 224.

[7] Critics have argued, for example, that consociationalism is less likely to solve conflict that is based on ethnicity. See, e.g., B Barry, "Political Accommodation and Consociational Democracy" 1975 British Jnl of Political Science 471. See also, Barry, "The Consociational Model and its Dangers" 1975 European Jnl of Political Research 393. Nor is it helpful for resolving class conflict. See, e.g., the Marxist analysis offered by L Graziano, "The Historic Compromise and Consociational Democracy" 1980 Political Science Review 345. Further, the relevance of either model to the resolution of conflicts specifically concerning indigenous or tribal peoples needs further exploration. In Lijphart's work, for example, such conflicts were not considered significant enough to even categorise some such countries as having plural, or divided, societies. See Democracies: Patterns of Majoritarian and Consensus Government in 21 Countries (1984). Will Kymlicka has paid attention to indigenous peoples in particular and discussed how their position is different from most other national minorities; but he also argues that more work needs to be done on this. See, e.g., Kymlicka, Multicultural Citizenship, (Clarendon Press, Oxford, 1995); Kymlicka & Shapiro (eds) Ethnicity and Group Rights: Nomos XXXIX (NYU Press, NY, 1997); Kymlicka, “American Multiculturalism and the ‘Nations Within’” in Political Theory and the Rights of Indigenous Peoples, Ivison, Pattison & Sanders (eds), Cambridge University Press, 2000), 216.

[8] Indeed, Daalder argues that consociationalism generally requires a history of compromise and cooperation between the relevant elites: "The Consociational Democracy Theme" 1974 World Politics 604.

[9] Note that this may be in addition to other devices such as autonomy over local affairs.

[10] Roger Maaka and Augie Fleras, “Engaging With Indigeneity: Tino Rangatiratanga in Aotearoa”, Political Theory and the Rights of Indigenous Peoples, Ivison, Patton, Sanders (eds), (Cambridge UP, 2000), 89 at 104. Note that the term used by Maaka and Fleras is tino rangatiratanga (translated as chieftainship or sovereignty).

[11] See Part III, below.

[12] See MPK Sorrenson, “A History of Maori Representation in Parliament,” Appendix B to the Report of the Royal Commission on the Electoral System (December 1986), at p. B-18.

[13] The New Zealand Constitution Act 1852. The property requirement could be in relation to freehold land (worth at least 50 pounds), or leasehold (annual value of at least ten pounds), or a tenement (annual rental of at least ten pounds in a town or five pounds in the country).

[14] See MPK Sorrenson, above n.12, at p. B-17: Crown law Officers ruled in 1859 that Maori communal tenure did not qualify for the franchise.

[15] See Sorrenson, above n.12 , at p. B-19. There was already, at this time, separate representation in Auckland for pensioners, so the concept was not considered unusual. See RJ O’Connor, “The Future of Maori Representation in Parliament,” 1991 New Zealand Law Journal 175, at 175.

[16] See Preamble to the Maori Representation Act 1867. See also Sorrenson, above n.12, at pp. B-20-21. This transfer of communal land titles to individual land titles had recently begun, pursuant to the 1862 and 1865 Native Lands Acts, but it was proceeding very slowly.

[17] Sorrenson, idem.

[18] Section 12, Maori Representation Act 1867.

[19] Sorrenson, above n.12, at p. B-22.

[20] Idem.

[21] Ibid, p. B-23, B-25.

[22] Ibid, p. B-24

[23] Ibid, p. B-25.

[24] Idem.

[25] Ibid, p. B-26.

[26] Idem.

[27] Ibid, p. B-24.

[28] Idem

[29] This is despite the government’s desire for assimilation and a then commonly projected decline in Maori and mixing of populations leading to the view then that one day it would be safe to amalgamate Maori on the main electoral roll. Sorrenson, above n.12, pp B-36-37.

[30] See Sorrenson, above n.12, pp B-29-36. Indeed, it has been suggested that the success of Maori in parliament led to “the gradual demise of autonomous, extra-parliamentary Maori political movements.” Ibid, p. B-38, 39.

[31] Legislative Amendment Act 1910.

[32] See Sorrenson, above n.12, p. B-37.

[33] Except for a brief period in 1975, when a law was passed to this effect, but was then quickly repealed.

[34] Note that this view, while being the majority view, neither was nor is by any means unanimous. For some examples of those preferring to abolish the Maori seats, see RM Dibley, “Maori Representation in Parliament: The Four Maori Seats” (Victoria University of Wellington, MA thesis, 1993), at pp.184-185; MK Farrell, Te Pooti Maori: Maori Representation and Electoral Reform (Occasional Paper No.33, Centre for Maori Studies and Research, University of Waikato, 1992), at pp.34-39. The reasons for abolition of the seats are the disadvantages summarised by the Royal Commission, below.

[35] Note that this was also a position publicly campaigned for by Winston Peters, a prominent Maori MP, and by the Electoral Reform Coalition. The position campaigned for was as a temporary measure, to see if the results promised by the Royal Commission in respect of MMP actually eventuated. See Farrell, ibid, pp.52-53. The Parliamentary Electoral Law Reform Select Committee went further than this and did not recommend that retention of the Maori seats be temporary.

[36] See Inquiry into the Review of MMP: Report of the MMP Review Committee (NZ Parliament, August 2001), at pp.19-20. Note also that representation of women and of other ethnic minority groups has been improved as a result of the introduction of MMP. Idem.

[37] The 10 other Maori MPs comprised of 7 from the party lists and 3 from general electorate seats.

[38] The increase of the Maori seats to 7 was because of the increase in the Maori electoral roll.

[39] 2001 Census data indicates that Maori and 14.28% of the population, but the faster rate of growth of the Maori population now places Maori closer to 15% of the population. Source: Statistics New Zealand information on Te Puni Kokiri website, www.tpk.govt.nz.

[40] See below for a more detailed description and discussion of the 2001 review.

[41] The two key speeches by Bill English where he made these arguments were on January 23, 2003 and at a National Party conference in May 2003. See, e.g., the reports in the Dominion Post on Jan.24, 2003, at p.A2 and Editorial at B4; and Dominion Post on May 5, 2003, at p.A2 and comment by Michael Bassett on May 13 at p.B4.

[42] “A Brief History of Indian Legislative Representatives in the Maine Legislature,” by S. Glenn Starbird, Jr, (1983), updated by Donald Soctomah (1999); contained in Final Report of the Committee to Address the Recognition of the Tribal Government Representatives of Maine’s Sovereign Nations in the Legislature, Appendix H (Maine Legislature, April 2000).

[43] See DL Lovell, “Precedents for a Nonvoting American Indian Delegate to the State Legislature,” American Indian Memo No. 98-6 (State of Wisconsin, Legislative Council Staff, May 7, 1999), at pp.1-3.

[44] Apparently the delegates do not actually speak very often on the floor, but are listened to and taken seriously when they do. Ibid, p.3. This is different from accounts of the first phase of the Maori seats in New Zealand. See above nn.23-24.

[45] See, e.g., Starbird, above n.42.

[46] The one-person-one-vote rule, which is so clearly a part of the Equality clause in the Constitution, would be violated, as tribal members would then have 2 representatives in Parliament: one through their general electorate MP and one through their tribal representative. See “Opinion of the [Maine] Attorney-General on Questions Propounded by the Committee,” Nov. 16, 1999, contained in Final Report, above n.42, at Appendix E.

[47] See “Issues and Options Paper Generated from Committee Discussions” by Maine Office of Policy and Legal Analysis, at p.4, contained in Final Report, above n.42, Appendix D.

[48] The reason these delegate positions exist is practical: the Indian Nations exist within the State’s borders and many State laws and policies impact on them daily. Presence in the State Parliament allows them to have input into such laws and policies.

[49] Interestingly, the issue of separate Aboriginal electoral districts is not possible in the USA under the constitution.

[50] These interpretations of the rights afforded by the Treaty of Waitangi have come from both the Waitangi Tribunal and the New Zealand courts. It is important to note here that New Zealand law does not permit Maori to bring court actions for direct enforcement of these Treaty rights against the government unless they have first been legislatively recognised.

[51] For example, there are currently serious divisions within Maoridom about mandate and representation, including the iwi/hapu/urban splits, over a wide range of issues other than the Maori seats.

[52] Inquiry Into the Review of MMP: Report of the MMP Review Committee, Presented to the House of Representatives, August 2001.

[53] There was only one issue in respect of Maori representation on which the Committee reached unanimous agreement, but this was not in relation to the guaranteed Maori seats. It was an issue relating to Maori parties under the general, proportional system.

[54] Interestingly the Committee does list the Royal Commission’s five principles of Maori representation, but does not then (at least explicitly in the report) use them to evaluate any of the options discussed arising from the submissions. There were at least three places where more detailed discussion of this sort could have taken place.

[55] Interestingly, the only reference in the Review Report to discussions at this level of principle was when reporting ACT’s contribution to the debate. ACT is a right-of-centre political party that argues strongly for the abolition of the Maori seats on both principled and practical grounds. Many Maori have criticised these arguments as racist and/or insensitive to Maori grievances.

[56] Parliament of New South Wales, Legislative Council, Standing Committee on Social Issues, Report No. 18, November 1998. Referred to below as the ”NSW Report.”

[57] Term of reference, paragraph 5, 20 September 1995. See page 3 of the Report.

[58] NSW Report, p.iv.

[59] NSW Report, p.iv.

[60] For example, the Committee recommended the establishment of a Aboriginal Assembly within the New South Wales Parliament as an interim measure (Conclusion 2 at page 106). With one of its key tasks being “to ascertain community and political support for dedicated seats, and devise an appropriate model in consultation with the Aboriginal community” (page 105 of the NSW Report).

[61] For example, in Chapter 2 it considers the facts and figures of Aboriginal political representation in Australia, and the history of dedicated seats, including calls made for them since the 1930s.

[62] See chapter 3, NSW Report.

[63] NSW Report, p.68.

[64] NSW Report, pp.68 - 69.

[65] NSW Report, p.73.

[66] Michael Dodson, the former Aboriginal and Torres Strait Islander Social Justice Commissioner “urged the committee to ensure that guaranteed representation was not seen as a substitute for other mechanisms to increase self-determination for indigenous people (submission 24)” (page 38 of the report). “David Mendelssohn, President of the New South Wales Division of the Australian Democrats, said his party would support dedicated seats if it could be shown that this would further self-determination for indigenous people, but: whether it promotes these objectives would depend to some extent to how it is done” (NSW Report, page 40). “The New South Wales department of Aboriginal affairs suggested that dedicated seats could demonstrate a commitment by the State government to the notion of self-determination for Aboriginal people in NSW (submission 21)” (NSW Report, page 46).

[67] NSW Report, p.40.

[68] NSW Report, p.103. For example the Committee begins its conclusion with “the Committee believes that a just and equitable Australian society requires that indigenous peoples are able to participate in the decisions that affect their lives and communities”.

[69] Report No. 42, September 2003. Referred to below as the “Qld Report.”

[70] Legal, Constitutional and Administrative Review Committee of the Legislative Assembly of Queensland, Hands on Parliament: A Parliamentary Committee Inquiry into Aboriginal and Torres Strait Islander Peoples’ Participation in Queensland’s Democratic Processes – Issues Paper, December 2002. Referred to below as the “Qld Issues Paper.”

[71] Qld Issues Paper, p.7.

[72] Qld Issues Paper, p. 8.

[73] For example: “enhance the participation of indigenous peoples in the Parliament” (at p.15), “enhance participation of indigenous peoples in the democratic processes in Queensland (at p.21 & 23), “promote greater participation by indigenous people in the existing democratic process” (page 13), and “ensure greater representation of indigenous peoples” (page 22).

[74] Pages 10, 15, 18 and 21.

[75] Qld Report, Part 1, Section 3, pp.9-16.

[76] The Committee, at p.11, quotes from Larissa Behrendt’s book, Achieving Social Justice – Indigenous Rights and Australia’s Future (The Federation Press, Sydney, 2003), at pages 106-115. The committee quotes one of the meanings of indigenous self-determination as being: “Autonomy and decision making powers which consists of a claim for control over decision making that affects peoples day-to-day lives through decentralised forms of government and institutions and community based self-government and decision making that empowers the individual.”

[77] Qld Report, at p.12.

[78] Qld Report, p.15. The Committee comments (in full): The committee has been criticised for basing its enquiry in a liberal democratic framework and thereby necessarily limiting solutions to this framework. While this criticism cannot be ignored, it is arguable that Indigenous peoples’ participation in democratic processes is necessary to effect meaningful change. Conversely, there scope for governments in Australia to be engaging indigenous peoples more appropriately in decisions that affect them. (footnotes omitted).

[79] Page 26. For example consultation, decision making and ceremonial processes are identified.

[80] Recommendation No. 15 at page 45.

[81] For example, see the Committee’s comments at page 50 of the report:

The concept received some support as a model which would enhance participation and representation and provide an appropriate forum for Indigenous peoples to participate in decision making. Some people considered it to be a model which is familiar to Indigenous people in that it could be structured to suit Indigenous decision making processes. Some who supported the concept of an assembly considered that the Queensland Parliament should be required to respond to issues raised by an indigenous assembly. (footnotes omitted.)

[82] See page 53.

[83] Page 54.

[84] Page 56.

[85] Page 58.

[86] “The committee does not believe that, at this stage, there should be a review examining alternatives to Queensland’s electoral system of single representative electoral districts”, page 58.

[87] For example, the changes to the proportional representation system (MMP) in New Zealand was for reasons of overall representativeness, not just Maori. General public dissatisfaction occurred when governments were elected with more than 50% of the electorate seats but considerably less than 50% of the overall vote.

[88] Human Rights and Equal Opportunities Commission, Bringing them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from their Families, April 1997.

[89] For example, Bringing them Home contains a chapter (including a Recommendation) entitled “Self-Determination,” at pp.562-580.

[90] It also contrasts with the New Zealand Royal Commission on Electoral Reform which took submissions and commissioned its own research, like this enquiry, but made their own decision on a much more rigorous theoretical and principled base (or dare I say it: academic).

[91] See the NSW Report, Enhancing Aboriginal Political Representation, above n.1, Conclusions One and Two, pp.104-106.

[92] The Committee Inquiry recommended that this be done (idem) and the majority of Aboriginal participants in the Inquiry preferred dedicated Parliamentary seats over other options for improving Aboriginal political representation. See ibid, at p.73. But the Aboriginal body established would do more than just develop such a proposal: the suggestion was that it would be an ongoing body operating to assist any Aboriginal representatives appointed under such a proposal.

[93] For example, in Australia there is the added overlay of ATSIC electoral districts and rolls, giving rise to the issue of whether, as either a principled or practical matter, they will play any part in any political representation system devised.