[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.