Introduction
“It was essential to have a full understanding of the history of Māori representation…Unless decisions concerning Māori representation are made in the context of our history … past misunderstandings are likely to continue.”
Separate electorate seats in Parliament to represent those New Zealand electors choosing to register on the Māori roll are a distinctive feature of New Zealand’s democracy. Dedicated electoral seats have also been created for ethnic or indigenous groups in Lebanon, Fiji, Zimbabwe, Singapore, the United States dependencies of Guam and Puerto Rico, and India, while the Saami (Scandinavian Lapps) have a separate parliament.
Debate over the Māori seats has attracted substantial interest – political, public, and academic – over many years. The 1986 Royal Commission on the Electoral System noted that the Māori seats have come to be regarded by Māori as an important concession to, and the principal expression of, their status as the indigenous people of New Zealand. The Commission also noted that the Treaty of Waitangi afforded a special constitutional status to Māori in that the Crown formally recognised the existing rights of Māori and undertook to protect them.
Others note that although Māori hold a diverse variety of political positions, they nevertheless have a shared cultural heritage, a physical distinctiveness, a history, which predates colonisation, and aspirations towards self-determination. Within this context, the Māori seats are seen as improving the chances of effective Māori representation.
At the same time, others argue that they are discriminatory by providing a political right not accorded to all voters, or that a separate Māori roll is divisive.
This Background Note begins with a discussion of the historical context leading to the creation of the Māori seats – the early political rights granted to all adult males, the effective disenfranchisement of Māori from these rights, and the attempts by Māori to focus their political participation in their own tribal and supra-tribal organisations. The immediate origins of the Māori seats are then discussed, followed by an outline of the disparities in the way electoral laws have been applied to those New Zealand electors defined as, or identifying as, Māori.
Although the paper discusses the history of, and original justifications for, the Māori seats, it does not attempt to analyse contemporary reasons either for or against their continuance. However, the paper outlines a number of substantial electoral changes that have occurred and that have significance for the system of Māori representation in New Zealand, most obviously the introduction of the Mixed Member Proportional (MMP) electoral system. In light of these electoral changes, a number of arguments, both for and against the Māori seats, are either redundant, or may need to be reconsidered.
The Franchise
The Māori seats were established by the Māori Representation Act of 1867, although their origins owe much to the New Zealand Constitution Act (NZCA) passed by the British Parliament in 1852. The NZCA provided for a two-tier system of government – six elected provincial councils and a General Assembly. The General Assembly was to have had a lower and an upper chamber – an elected House of Representatives and a nominated Legislative Council. The House of Representatives was to consist of between 24 to 42 members (none were to be Māori), elected every five years, while the terms of the provincial councils were four years.
Section 71 of the NZCA also provided, by way of letters patent, for certain districts within New Zealand to be set apart, in which Māori laws, customs and usages were maintained “for the Government of themselves, in all their Relations and Dealings with each other”, provided these were “not repugnant to general principles of humanity.”
However, Section 71, which effectively would have allowed a good degree of self-government by Māori, was never implemented. Later separatist movements – Kauhanga nui (the King movement) and Te Kötahitanga (the Māori parliament) – based, in part, their right to autonomy on section 71 (see below).
The NZCA granted the franchise for both the provincial councils and the House of Representatives to all males – including Māori – who were over 21 years and who had any of the following:
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a freehold estate within the electorate valued at £50;
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a leasehold with an annual value of £10;
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a tenement with an annual rental of £10 in a town (or £5 in the country).
Although these qualifications on voting rights applied to Māori and non-Māori males alike, in effect it meant that few Māori were able to vote – since most land held by Māori was communally held (rather than held by individuals), and held in customary title (unregistered).
Under the NZCA, the post of Governor of New Zealand remained – a post that retained responsibility for ‘native’ policy, while foreign policy remained under the control of Britain. The NZCA also gave the General Assembly responsibility for the sale of Māori land, and enabled it to make laws which imposed disabilities or restrictions on Māori which were not also imposed on Europeans.
Beyond these broad parameters set by the NZCA, however, the relations between the Governor, his Executive Council, and the General Assembly remained unclear. The issue, therefore, of responsible government – in terms of independence from Britain, and the accountability of elected representatives to the New Zealand public – was not addressed at the time of the formation of the first parliament. This uncertainty also meant that the NZCA did not clearly resolve the issue of responsibility for Māori affairs – uncertainty that led to a prolonged struggle between the early Ministries and the Governor over the control and conduct of Māori affairs.
The 1850s
At the time the NZCA was passed, it was asserted that Māori and settlers formed “one harmonious union … and were rapidly and invisibly forming but one people.”
This assertion was far from the truth. In reality, European settlers and Māori formed two separate communities within a single country.
Although there was a good degree of trade and economic interdependence, New Zealand could not be regarded as a plural society since Māori and settlers were politically and socially distinct. Although legally British subjects, Māori lived, for the most part, quite outside the scope of British law. Beyond the limits of European settlements, the enforcement of the law was rarely possible. Even within such settlements, criminal law could usually be enforced against Māori only after negotiations with the tribe.
However, the single biggest issue affecting relations between Māori and non-Māori in the 1850s and 1860s was that of land and land sales. The sale of land cannot be seen simply in commercial terms – it was a political act.
“When a tract of Māori land passed from Māori owners to the Crown, the area in which the Queen’s sovereignty was effective was thus far extended. In opening negotiations buyer and seller alike were conscious of this fact.”
Several issues added to the politicisation of land – the rapid rise in the European population, resistance to land sales by Māori, and the constraints imposed on the sale of land under the Treaty of Waitangi and enforced by the Imperial (British) government.
“A stream of immigration is pouring thousands of settlers into this Province every year, and, if it continues, the population will be doubled in a very short time. Soon, therefore, a want of available land will really be experienced, and it cannot be concealed that neither law nor equity will prevent the occupation of Native lands by Europeans when the latter are strong enough to defy both the Native owners and the Government, as will be the case ere long, and then it will be seen whether or not the Māories will prove an exception to the rule which seems universal, viz., that the Aboriginal savages must fade away before their civilized brethren.”
Māori did indeed prove an exception to this “rule”. Through the creation of land leagues Māori organised effective resistance to the individualisation of land titles and land sales. Such resistance was certainly effective in the short term. Of the 26 million acres in the North Island, only seven million (27 percent) had been acquired for colonisation by 1859. But resistance to land sales was only part of the problem. Governor Gore Browne identified the constraints imposed by the British Government as a further barrier to colonisation:
“The Imperial Government having, however, declared unequivocally its determination that even colonization must be a subordinate consideration to the duty of maintaining the substantial rights of the Aborigines, and that their full and intelligent consent to alienate [land] must be an indispensable preliminary in the acquisition of Native Lands, it remains to be considered in what manner these objects can be most effectively secured.”
Increased Colonial Powers
The manner in which the objectives of the colony were “effectively secured” was by the colonists gaining almost complete control of government by the early 1860s. The British Parliament had passed a New Zealand Constitution Amendment Act in 1857 which gave the New Zealand Parliament authority to amend all but a few entrenched sections of the 1852 Constitution Act. Consequently, in the 1860s, responsibility for native affairs was also gradually transferred from the British to the Colonial Government.
One consequence of this transferral of power was the passage of the Native Land Acts of 1862 and 1865. These acts abolished Crown pre-emption – previously established by Article 2 of the Treaty of Waitangi – and enabled a certificate of title (Crown Grant) to be issued to individual Māori for specific blocks of land, prior to direct alienation to settlers. No more than ten persons were recognised as owners of any one block, regardless of the actual number of joint owners, and any one of the ten could be dealt with as an individual owner, not bound to seek the consent of the other owners before agreeing to sell.
These measures helped to undermine the Māori system of communal ownership of land, since any Māori who possessed a Crown grant was neither obliged to consult others listed on the title nor required to sell to the Crown in the first instance. This resulted in Māori land becoming much more accessible for purchase by European settlers. Over a thirty-year period, Māori were exposed to
“a predatory horde of storekeepers, grog-sellers, surveyors, lawyers, land agents and money-lenders [who] made advances to rival groups of Māori claimants to land, pressed the claim of their faction in the Courts and recouped the costs in land. Rightful Māori owners could not avoid litigation and expensive surveys if false claims were put forward.”
As a consequence, the colonial government or settlers owned almost 95 percent of the North Island by 1900.
Estranged from the Political System
To participate in the formal institutions of political power in New Zealand over the period 1852 to the mid-1860s – to gain the franchise – required Māori to individualise their land. When combined with the land acquisition policies of the colonial governments, the bitterness and distrust of European settlers arising out of the loss of land, poverty, and the divided political responsibility for Māori affairs, Māori were effectively estranged from the political system.
Most Māori shared the dissatisfaction expressed by the chief of the Ngatiwhakaue, Te Rangikaheke, at the exclusion of Māori from any real share in a Government which appeared increasingly determined to acquire Māori land, and increasingly under the control of the settler assemblies. In 1855, Te Rangikaheke wrote to his fellow chiefs:
“There is no recognition of the authority of the native people, no meeting of the two authorities …. Suggestions have been made (with a view to giving natives a share in the administration of affairs), but to what purpose? The reply is, this island has lost its independence, it is enslaved, and the chiefs with it.”
Separate Māori institutions
As a consequence of the effective exclusion of Māori from formal political participation during the 1850s and 1860s, Māori began to direct their political energy to the development of their own tribal and supra-tribal organisations. Supported by their understanding of their political rights under the Treaty of Waitangi, as well as those seemingly granted under Section 71 of the NZCA, Māori endeavoured to seek political representation, a degree of political autonomy, or both, over the ensuing decades. However, Māori opinion was divided as to whether this should be done separately from, or in association with, the Europeans.
Māori nationalism – in the form of calls for a Māori King and a Māori parliament – were examples of attempts to create separate Māori political institutions. In 1853 the Christian chief from Ötaki, Matene Te Whiwhi, called for the tribes to unite under the Queen’s government. In 1856, there was a large meeting of Māori at Taupö where an annual Māori parliament was proposed as a way to check the growing influence of the colonists and restore the power of the native chiefs. The meeting also endeavoured to proclaim a Māori King, and called for an end to land sales to the government.
At the 1856 Taupö meeting, the Waikato chief Pötata Te Wherowhero was called upon to accept the Kingship. After much reluctance, he accepted in 1858. Governor Grey, however, was disinclined to see the King movement as an autonomous Māori authority, and few Europeans in the colony were interested in negotiating with the kingites on any terms which included recognition of the King.
Nevertheless, the King movement was a substantial attempt by Māori leaders to establish a separate, autonomous political authority, and was an effective land league – in that the King had veto over the sale of land by all the chiefs who owed allegiance to him.
Another attempt at political autonomy was the idea of a Māori parliament, which evolved first from the Kohimärama conference held in 1860. This conference was initially a response to the government which had called 200 chiefs to Kohimärama to discuss the Treaty of Waitangi.
The chiefs viewed the conference as a new ratification of the Treaty by a fuller and more representative cross-section of the Māori leadership.
Ultimately, the continued refusal by government to recognise Te Kötahitanga, or the Māori King, led Māori to come back to Māori representation in Parliament as “their last vestige of a lost autonomy.”
The Origins of the Māori Seats
It is within this context – conflict over land sales, estrangement from the political system, and the desire by Māori to enjoy political representation – that the origins of the Māori seats lie. A number of authors set out what might now be regarded as a commonly held view: that the Māori seats stumbled into being;
that the Māori Representation Act 1867 was a piece of “ad hoc” legislation;
that the seats “involved no high intentions or moral principles”;
that they were simply a useful way of rewarding Māori loyalists and placating Māori rebels; or that they helped to assure critics in Britain that the colonists were looking after Māori interests.
Taken individually, and read within the context of their authors’ work, these accounts of the origins of the Māori seats offer valid, if sometimes partial, explanations. Taken collectively, and out of context, these accounts risk creating the impression that the origins of the Māori seats owe more to tokenism than principles; that they were created in a moral and legislative vacuum.
No such vacuum existed. As Claudia Orange notes, embarrassment over censure from abroad is not by itself a satisfactory explanation of changes in colonial attitudes to Māori rights in the 1860s. A “thread of idealism, present in the treaty-making, was still evident.”
This “thread of idealism” among colonial legislators is variously apparent: in the recognition of a moral duty to accord voting rights to Māori as a consequence of the large landholdings held by Māori; in the acknowledgement of the sizeable contribution made by Māori to taxation revenue; and in the affirmation of the equality of Māori under Article III of the Treaty of Waitangi. European idealism also found more concrete expression: in the Native Rights Act 1865 that recognised in statute the equality and rights of Māori; in the legislative attempts aimed at modifying the existing property qualifications to enable Māori to vote; and in the Māori Representation Act 1867. These are discussed in turn.
Article III of the Treaty of Waitangi had guaranteed Māori the rights and privileges of British subjects, and this was re-enacted in statute law with the passing of the 1865 Native Rights Act that specified that Māori were deemed to be natural-born subjects of the Crown. The Native Minister, James Fitzgerald, long-time advocate for Māori political and legal equality, argued that it was futile to demand that Māori come under English law while at the same time prohibiting Māori claimants from taking questions affecting land held in customary title before the Supreme Court.
“Two rules are deeply fixed in my mind. 1. To expect men to respect law who don’t enjoy it is absurd. 2. To try and govern a folk by our courts and at the same time to say that our courts shall take no cognisance of their property is amazing folly. Two-thirds of the Northern Island is held under a tenure which is ignored by our law. Is it possible to govern any people by a law which does not recognise their estate in land?”
Perhaps because of his beliefs, a number of chiefs approached Fitzgerald in 1864 to discuss the possible creation of a franchise for Māori. As an interim measure, the Native Commission Act 1865 was passed. The Act empowered a commission of up to 40 members, of whom a majority were to be Māori, to:
“Examine and report to the Governor as to the most expedient mode of defining an Electoral franchise to be conferred temporarily and pending the conversion of their customary titles to land into titles under grant from the Crown upon persons of the Native race and of ascertaining the persons qualified to vote at elections in respect of such franchise.”
However, with the defeat of the Weld government in 1865, the commission was never constituted. Nevertheless, further legislative attempts to grapple with the specific problems of the franchise soon followed.
The Māori Electoral Bill 1865 was proposed by the Weld Government (1864 -1865) in an attempt to address the implementation of the electoral rights of Māori under Article III of the Treaty of Waitangi.
The Bill proposed to modify the existing (1852) franchise qualification for Māori from one based on individual property ownership, to one that would recognise Māori customary landholdings (joint or common ownership) as the basis for voting rights.
“The qualification of a Māori elector shall be a right or title in the nature of an absolute proprietary right or title according to Māori custom in or to land or a part or share of land within the Colony in which the Māori title shall not have been extinguished of the value of fifty pounds.”
However, the Bill was never introduced. In any event, it appeared to contravene an opinion sought from the Imperial Crown Law Office in 1859 to clarify the status of Māori land in relation to the franchise. This office ruled that
“Natives cannot have such possession of any Land, used or occupied by them in common as Tribes or Communities, and not held under Title derived from the Crown, as would qualify them to become voters.”
The right to vote, the Imperial Crown Law Office confirmed, depended on an individual owning land held in individual Crown title. Although Māori were substantial owners of land, they held the land in common as joint owners and under customary title – that is, not registered by the Crown. Māori had also been prohibited from registering any more than ten people as owners of the land they held.
While individualising land titles for Māori would allow more Māori to vote, it also enabled land to become much more accessible for sale to European settlers – since the consent of all the joint owners was not required. Increasing land sales, aided by colonial legislation, had led to war, and was a source of ongoing conflict between the settlers and Māori. The attempt to redefine property rights through the Māori Electoral Bill of 1865 had failed, and the slow conversion of Māori land from customary title to individual Crown title meant the effective disenfranchisement of Māori from the political process. Clearly, some alternative was required.
Although efforts at enfranchising Māori had failed, simply ignoring the effective disenfranchisement of Māori appeared, to many, to be morally wrong. In introducing the Māori Representation Bill 1867, the Superintendent of Hawke’s Bay, Donald McLean, noted that because Māori were “a people paying taxes, and owners of three-fourths of the territory of the North Island … they should feel that the Legislature itself was not closed against them.” At the second reading, McLean noted that because a population of 47,000 Māori paid some £40,000 to £45,000 in tax, “this House would agree that there was a necessity, a special necessity, for making the attempt, at the present time, to give these people a greater amount of representation.”
Given the strong associations between property ownership, taxation, and the franchise, there appeared to be a moral obligation to find a solution to the problem of Māori enfranchisement – alluded to in the preamble of the Māori Representation Act 1867 (MRA) 1867.
“Whereas owing to the peculiar nature of Māori land and to other causes the Native Aboriginal inhabitants of this Colony of New Zealand have heretofore with few exceptions been unable to become registered as electors or to vote at the election of members of the House of Representatives or of the Provincial Councils of the said Colony. And it is expedient for the better protection of the interests of Her Majesty’s subjects of the Native Race that temporary provisions should be made for the special representation of Her Majesty’s Native subjects in the House of Representatives and Provincial Councils of said Colony.”
The Māori Representation Act 1867
The MRA provided for the division of the North Island into three electorates: one north of Auckland; the other two bisected by a line running down the centre of the island. The whole of the South Island, Stewart Island, and adjacent islands were included in the fourth seat. The franchise was granted to Māori males aged 21 and over, including half-castes, but excluding any who had been "attainted or convicted of any treason felony or infamous offence" – a provision that was intended to exclude rebels against the Crown, but which gradually ceased to operate.
Section 6 of the Act specified that the representatives were to be chosen by and from the eligible electors; in other words, they were to be Māori or half-castes.
From today’s perspective, it is perhaps difficult to appreciate how radical a step it was in 1867 to grant voting rights on any other basis than property ownership. Voting rights in New Zealand, between 1852 and 1867, were not just restricted to adult males, but, with some exceptions (see below), to those males who either owned, leased, or rented property (see above, p. 3). Indeed, such was the association between the franchise and property that the Daily Southern Cross deplored the granting of the universal suffrage to Māori on precisely these grounds: it removed the incentive to acquire personal estate.
It is sometimes remarked that the fact that only four seats were created for a population of 56,000 Māori when a European population of 171,000 enjoyed 72 seats is evidence of “tokenism”.
This is, however, to focus on the level of representation at the expense of an appreciation of the original intent of the legislation – the creation of a special franchise. The fact that the Act saw male Māori receive the right to vote irrespective of any property qualification, twelve years before non-Māori, often escapes comment.
In looking at the origins of the Māori Representation Act 1867, therefore, it is important not to overlook its intent (a temporary franchise to circumvent qualification by property ownership), with an undue emphasis on its consequent outcome – the creation of a system of separate representation. In fact, at the time of its introduction, only two members objected to the Bill on the grounds that it entailed “special representation for the Native Race”.
Three further points support the emphasis on the franchise.
Firstly, in the preamble to the MRA 1867, there is the expectation that the special nature of the franchise granted to Māori would be temporary. Indeed, the provisions of the MRA 1867 received support from the legislators primarily on the basis that they were temporary measures to remain in force for only five years.
It was fully expected that as Māori land was converted to individual title, the franchise for Māori could revert back to the qualification imposed on non-Māori – that is, property ownership. After five years little progress had been made in individualising Māori land, so in 1872 the franchise provisions (and necessarily the Māori seats) were extended for a further five years. In 1876 the Act was extended indefinitely as European members began to fear that abolishing the seats would result in a flood of Māori voters onto the European rolls, thereby jeopardising the chances of European members in those seats.
Secondly, limiting the change in the franchise qualification to Māori avoided the potential for a fundamental shift in the system of taxation; from one based on property holdings and indirect taxes to one based on individuals. Had the franchise been granted to all male individuals on the basis that they were taxpayers, it would also have strengthened the growing call for women taxpayers to be included in the franchise as well – a call not heeded until 1893, over a quarter of a century later.
Finally, the creation of a special franchise was not unprecedented. A special franchise – one not based on property – already existed for the Pensioner Settlements electorate in Auckland, and the Goldfields electorates in the South Island.
Following the discovery of gold in Nelson in the 1850s, gold miners’ demands for the franchise had become insistent. The Miners Franchise Act 1860 subsequently gave the vote to all miners who had held a miner’s licence for at least three months. The Westland Representation Bill 1867 (introduced on the same day as the MR Bill) proposed two new seats for the miners of Westland. This Bill by itself, however, would upset the numerical distribution of seats between the North and South Islands.
Thus, in creating the four Māori seats – three for the North Island, and one for the South – the balance in the number of seats between the two islands could be preserved. As Sorrenson shows, Māori representation was considered a quid pro quo for increased representation for the South Island goldfields.
For the same reasons, the Bill’s preliminary proposal – that the representatives for the Māori seats could be European – was amended by making it mandatory that the representatives for the Māori seats should themselves be Māori.
“These [Southern] honourable members seemed to think that to introduce [European] representatives of the Native race would be the means of overturning the balance of power between the North and South supposed to exist in the House. He thought, seeing that the representation which was proposed to be given was quite of an exceptional character, and was not the same as the ordinary franchise, that the interests and security of the Southern Island might be attained if they pressed the exceptional character still further, and excluded from those new seats all except persons of the Native race.”
In the context of the provincial, not party, politics, of the day, the South Island representatives were unhappy at the prospect of three additional European members from the North Island. It is in this context (the way in which the number and ethnicity of Māori representatives was arrived at) that Ward’s observation applies: “In this way, an important feature of the New Zealand constitution … stumbled into being”.
Even here, maintaining the parity in representation was not the most significant reason given for supporting the Bill by all members. The MP for Heathcote, John Hall, said that the consideration of balance between the two Islands was not “a matter of so much consequence as the greater principle involved, and it was rather as a measure of justice to our brethren of the Native race, that he hailed the introduction of this Bill.”
The origins of the Māori seats, therefore, owe somewhat more to a sense of idealism and justice than is often granted. There was both a sense of moral obligation – seen in the legislative attempts to fulfil the moral responsibilities to a disenfranchised people who were paying substantial taxes – as well as a sense of fulfilling the constitutional obligations of the Treaty of Waitangi. This can be seen in the legislative history outlined above. Both dimensions suggest that efforts to achieve Māori political and legal equality were serious, and more than just a matter of public relations, goodwill, or tokenism.
Nevertheless, once the seats had been created, such accusations took on more resonance as the system of Māori representation began to be administered.
By the 1880s, the key elements of New Zealand’s modern-day electoral system were clearly visible: voting by secret ballot; an electoral roll; general elections held on the same day throughout the country; and a Representation Commission to determine electorates on the basis of population.
Disparities
None of these provisions, however, applied to the system of Māori representation. In introducing the Māori Representation Bill, Donald McLean had referred to the belief that Māori should have “equal rights with, and all the privileges and rights of, Englishmen.”
The mere granting of the franchise and the establishment of four seats in 1867 did not by themselves guarantee Māori equal political treatment. Over the next century, a number of electoral anomalies or disparities in the system of administration of European and Māori representation can be identified.
Although perhaps best not characterised as deliberate discrimination, these disparities in the administration of the Māori electoral system can be seen as resulting from “careless, if not convenient, neglect.”
The disparities discussed below are to be found in the voting method, voting rights, enrolment requirements, candidate rights, electorate determinations, and the constitutional status of the electoral system (see Table 1).
Table 1: Disparities Between Māori and European Electoral Systems in New Zealand 1853 – 2009
Source: Department of Justice, ‘The Electoral Law of New Zealand: A Brief History’, in The Royal Commission on the Electoral System, Report of the Royal Commission on the Electoral System: Towards a Better Democracy, 1986, Appendix A, pp. A4-A6.
The first election following the introduction of the Māori seats took place in 1868. Although some 48 polling places were notified, most of these were not used since only two of the seats, Eastern and Southern Māori, were contested. Eastern Māori was decided by a show of hands at a hui in Napier by 34 votes to 33 (See Table 2).
For the subsequent elections from 1871 on, however, large meetings preceded elections, and all four Māori seats were keenly contested. Only in 1911 and 1919 was a seat not contested – that of Eastern Māori.
One indication of interest by Māori in elections was the gradual increase in Māori polling stations, usually at the request of local Māori communities. By 1887 over 200 polling places had been established, including some in the remote King Country and Urewera. It was not until 1950, however, that the same polling (election) day was adopted for both the European and Māori seats.
No Secret Ballot until 1937
Whereas voting in the European seats was by secret ballot from 1870 on, voting at polling stations in the Māori electorates was by a show of hands. If this proved unsatisfactory, a poll could be demanded, in which case a written vote could be cast (if necessary by way of an interpreter). In 1893 Māori women, along with Päkehä women, got the franchise, effectively doubling those eligible to vote in each electorate. However, the subsequent lack of secrecy in voting by a show of hands, when no poll was demanded, attracted some criticism. The Legislative Amendment Act of 1910 abolished voting by a show of hands in favour of voting by declaration to a Returning Officer. But this hardly amounted to a secret ballot; the lack of which caused some resentment among Māori who felt that they were being treated as children and inferiors.
It was not until the introduction of the 1937 Electoral Amendment Act that Māori were able to vote by secret ballot – 47 years after it was compulsorily adopted for those voting in European seats.
The impact of the secret ballot was felt immediately. Table 2 shows that the total votes cast in the Māori seats in the 1938 election was 18.3 percent higher than in 1935. Concerns about illiteracy and language were belied by just 2.28 percent of voting papers being found to be invalid.
A third electoral area in which discrepancies were to be found was the lack of any roll of Māori voters for ninety years. Perhaps due to the constraints of distance, language, literacy, and proof of identity, the difficulties in compiling a roll for Māori for the first few elections may be understandable.
Nevertheless, a list of Māori electors who voted in the Southern Māori electoral district in 1908 was compiled. Although an act of 1914 had provided for the preparation of a Māori roll, it was never implemented – largely because of the lack of compulsory registration. It was not until 1948 that an electoral roll for all Māori was first prepared. Furthermore, although European voters had been required to register since 1924, compulsory registration for Māori was not introduced until 1956.
The adoption of the Second Ballot Act of 1908, (which altered the electoral system to ensure the winning candidate had a majority in an election), was also a discrepancy since it was not introduced for the four Māori seats.
Until 1949, voting rights in national referenda did not extend to Māori. The first national referendum in New Zealand’s history was conducted in 1911 on the issue of the prohibition of alcohol. This referendum was repeated at each subsequent general election. Although it was the only national referendum held until 1949, Māori were precluded from voting on the issue.
There were also long-standing differences in the way European and Māori electorates were determined, both in terms of electorate boundaries and electorate numbers.
In 1887 a Representation Commission was established. Following each five-yearly population census, the Commission reviewed the size and boundaries of the European electorates to ensure that they were within set population tolerances. In contrast, the boundaries of the Māori seats between 1867 and 1981 were changed just three times – two minor redefinitions of the boundary between the Eastern and Western Māori electorates in 1919 and 1951, and a major adjustment to three of the four Māori electorates in 1954.
The 1954 boundary adjustments were made so that all four Māori electorates were more equal in terms of their total populations. However, this ‘equality’ tolerated higher variations in electorate populations than that allowed in the European electorates. For example, in 1956 the electoral populations in the Māori electorates varied from 25,556 for Southern Māori to 39,357 for Eastern Māori – meaning that the Eastern Māori total was 14.6 percent higher than the mean electorate population, while that of Southern Māori was 26.6 percent below.
By comparison, the European electorates in 1956 were required to be within five percent of an electoral mean of 26,200. Thus, the largest variations from this mean were Riccarton (24,976) and New Plymouth (27,552).
It was not until 1981 that the Representation Commission was given the authority to redraw Māori electorates in the same way as those for the general electorates – that is, each Māori electorate was to contain an equal number of the Māori electoral population, subject to a tolerance level of five percent.
A more serious disadvantage was the inequitable manner in which European and Māori electoral populations were calculated. Since 1950 the electoral population for the European seats – on which the number and distribution of European seats was based – had been calculated using the total population, defined as all non-Māori and their children, but also including Māori children. The Māori electoral population, by comparison, was based on Māori people of voting age only. This created a sense of grievance, felt by many Māori voters, that their children were being used to increase the number of non-Māori seats.
It was not until 1975 (through the 1975 Electoral Amendment Act) that the calculation of the Māori electoral population included the children of those who chose to vote on the Māori roll.
It is perhaps the issue of the fixed number of seats that attracted most criticism over the years. As late as 1964, Keith Holyoake was defending the fixed number of Māori seats, set at four, by arguing that:
“Māori representation had never been regarded as being on a population basis; that it was a special kind of representation introduced at a time when the right to vote was based largely on property qualifications.”
As demonstrated above, this was certainly true insofar as the origins of the Māori seats were concerned. It was not, however, an accurate statement of Māori opinion subsequently, which regarded four Māori seats as inequitable when European seats increased from 72 to 99 between 1867 and 1993.
Almost immediately following the introduction of the Māori seats in 1867, Māori – through petitions, parliamentary resolutions, and the introduction of bills – argued that the number of Māori seats should be determined on a population basis just as were the European seats. In 1871 the member for Eastern Māori, Karaitiana Takamoana, moved a resolution (not passed) in the House that called for an increase in the level of Māori representation. A bill introduced in 1876 by the member for Southern Māori, H. K. Taiaroa, repeated that demand; in the same year Parliament was petitioned for Māori representation to be “in the same proportion as the representation is of the European race by European members”.
In the 1930s, the Rätana movement succeeded in having its candidates elected to Parliament on a platform of electoral reform, including an increase in the number of Māori seats to six to reflect growth in the Māori population.
In 1965 the member for Southern Māori, E.T. Tirikatene, was pleading for an increase in the Māori seats on the basis that they should be determined by the total Māori population, just as were the European seats.
After a century of such demands, they were first heeded in 1975 with the introduction of the 1975 Electoral Amendment Act. The Act specified that the number of Māori seats were to be determined on the same basis as was used for the European seats – that is, by the level of the electoral population. However, following a change of government, this provision was repealed, and the number of Māori electorates was again fixed at four.
It was not until the passage of the Electoral Act of 1993 that the number of Māori seats could again be determined by a formula based on the total Māori electoral population. The Act in effect restored the system briefly in force in 1975, whereby those electors identifying as Māori are periodically given the option of transferring between the Māori and the general roll (the Māori Electoral Option). From a combination of the number of electors on the Māori roll and a proportion of the number of persons with Māori descent, the Māori electoral population, and hence the number of Māori seats, can be calculated.
The Māori Electoral Option
The Māori Electoral Option is held every five years, usually coinciding with the national census. The Electoral Enrolment Centre is responsible for managing the option process, which includes a mass media, kanohi ki te kanohi (face to face) and mail out campaigns. Enrolment cards are mailed to all Māori on the Māori roll and all persons identified as Māori on the general roll. The option process that was conducted in 1994 became the subject of litigation in both the High Court and Court of Appeal. The Court of Appeal found that the steps taken by the Crown to provide adequate funding to conduct and advertise the Option (mainly by postal notices, with no television advertising), while “far from perfect”, passed the test of reasonableness.
Nevertheless, in his concluding comments Justice McGechan thought that the Crown might see a need to reflect further as to option timing and resources.
In its 1996 report on the Māori Electoral Option, the Electoral Law Select Committee recommended that the option period be extended from two to four months, and Parliament amended the Electoral Act accordingly.
The significance of the Māori Electoral Option process could be seen in the rise in the number of voters registering on the Māori roll – from 101,585 in 1993 to 194,114 in 2002, an increase of 91 percent (see Table 2). This resulted in the number of Māori seats rising from four in 1993 to seven in 2002. As a proportion of the total New Zealand electors with Māori descent who are enrolled, a majority (55 percent) were enrolled on the Māori roll in 2002.
Not entrenched
In 2003, a major disparity between the Māori and general electoral systems remains. Citing the exclusion of the entire system of Māori representation from the entrenched provisions of the 1956 Electoral Act, Ranginui Walker describes it as “perhaps the most discriminatory measure of all in the application of the law to Māori representation.”
While the provisions of the 1956 Act were mostly superseded by those of the 1993 Electoral Act, it still remains the case that the provisions regulating the general electorate seats are entrenched in the 1993 Act, while those concerning Māori representation are not.
That is to say that all the sections containing provisions relating to Māori representation – the definition of Māori, the Māori electoral districts, the Māori electoral population, the Māori electoral option and Māori electoral rolls (Sections 3(1), 45, 76-79 and 84); and the supply of electoral information to "designated bodies" (Sections 111C-112) – can be repealed by a simple majority in the House. By contrast, any change to the provisions relating to the general electorate seats requires either a 75 percent majority in the House of Representatives, or a referendum.
In considering the issue of the entrenchment of the provisions relating to Māori representation, the 2001 MMP Review Committee was divided. The Alliance, Green, and Labour parties supported entrenchment and considered that Māori electoral provisions should enjoy the same level of protection as the general seats. The ACT, National and United parties did not agree the seats should be entrenched although they considered the seats held a particular significance in terms of the place of Māori in New Zealand society.
Beyond these institutional and legal disparities, there are considerable practical difficulties in casting a vote for those on the Māori roll. These include the much larger geographic size of Māori electorates (requiring some Māori electors to travel far greater distances than non-Māori electors in order to cast an ordinary vote), and limited numbers of both Māori polling booths and returning officers. These barriers highlight the fact that the ‘cost of voting’ is significantly greater for Māori voters than for non-Māori.
These barriers may, in part, account for the much lower turnout for those on the Māori roll – on average, a 17 percent lower turnout than those voting on the general roll in elections since 1990.
In recognition of the need to provide a “better service to Māori voters”, the number of polling places with provision for Māori to cast an ordinary vote was increased from 534 in 1993 to 1,203 in 1999.
Nevertheless, many Māori electors choose to reduce their ‘voting costs’ by casting a special vote in one of the general electorate polling places – reflected in the fact that the proportion of special votes cast in the Māori electorates since 1972 is approximately four times greater than found in the general electorates. This option is itself, however, a time-consuming exercise with the added disadvantage that special votes cast in Māori electorates are more likely, mostly on procedural grounds, to be disallowed than special votes cast in general electorates. Between 1972 and 1987, an average of 41.8 percent of special votes cast in Māori electorates were disallowed.
To some extent the tangata whenua vote – the facility introduced in 1987 that allows enrolled Māori electors to cast a vote at any polling place within a Māori electoral district – has helped to greatly reduce the number of Māori special votes, which are disallowed. Between 1987 and 1996 disallowed special votes in Māori electorates dropped to an average of 19.3 per cent. Despite this improvement, the Electoral Law Committee noted in its review of the 1996 election that the tangata whenua voting process was still unsatisfactory.
“Voters must still queue in the special voting queue, they must deposit their voting papers in a special votes box and the issuing officer is required to enter the names of tangata whenua voters on a list of special voters. Casting a tangata whenua vote takes longer than casting an ordinary vote. This is unfair to those tangata whenua voters who are on the electoral roll and who are voting in their electorate.”
Finally, changes made to the electoral system since 1967 have implications for the way in which a remaining disparity between general roll and Māori electors is seen.
Since 1967 – no legal guarantee of representatives who are Māori
In 1967 the electoral system whereby four electorate seats were ‘reserved’ for representatives who were specifically Māori ended. Following the Electoral Amendment Act of 1967, the 100-year-old disqualification preventing Europeans from standing as candidates in Māori seats was removed. (The same Act allowed Māori to stand in European electorates.)
Since 1967, therefore, there has not been any electoral guarantee of representation by candidates who have Māori descent. While this still means that those elected to represent Māori electors in the Māori electorates are directly accountable to those voters, it does not require those representatives to themselves be Māori.
Despite this change, there has yet to be a non-Māori elected in a Māori electorate seat, although non-Māori candidates have contested them since 1967. The importance of iwi and hapü connections for Māori, as well as the general perception that the interests of those voters on the Māori roll are best represented by candidates who are themselves Māori, make it difficult to imagine non-Māori being elected to a Māori seat.
Despite the removal of this technical guarantee of representatives who are Māori, the Crown may be obliged by the Treaty of Waitangi to protect and facilitate Māori representation.
“Equally there is no doubt Treaty principles impose a positive obligation on the Crown, within constraints of the reasonable, to protect the position of Māori under the Treaty and the expression from time to time of that position. … Māori representation – Māori seats – have become such an expression.”
Nevertheless, it is only in terms of choosing an electoral roll that there remains a legal distinction between Māori and non-Māori voters; although this ability to choose has only been available to Māori since 1975. From 1893 until 1975, those persons of more than half Māori descent were not allowed to vote in a European electorate. Those of less than half Māori descent did not qualify to vote in a Māori electorate and had to cast a vote in a European electorate. Between 1893 and 1975, only those of precisely half Māori descent were able to choose whether to vote in a Māori or European electorate. The 1974 Māori Affairs Amendment Act also altered the definition of Māori from one based on the distinctions above, to one that defined Māori as any person descended from a person of the Māori race who elected to be considered as a Māori regardless of the degree of descent. This change “indicated a readiness to accept a culturally delineated rather than a narrow, hereditarily delineated definition of ethnicity.”
In 1975 the right to choose between electoral systems was extended to all those of Māori descent. Until 1993, of course, exercising that choice had no impact on the number of Māori seats, since the number of Māori seats was fixed regardless of the number of Māori choosing the Māori roll. By 1993, each Māori seat represented an average electoral population of 68,150. Each general electorate seat in 1993, on the other hand, represented an electoral population of 33,457.
Separate Māori representation?
The advent of MMP has further diminished the effective distinction between New Zealand electors enrolled on separate rolls. As Henare notes, separate Māori representation applies only to electoral district votes; for party votes, the rolls are effectively combined.
The implications of this, perhaps, have yet to be fully appreciated. Since it is the party vote that ultimately determines the distribution of seats in the House, whether a voter is enrolled on the Māori or general roll has no effect on a party’s share of the party vote. In fact, one electoral roll for all voters has been suggested.
In conclusion, it is somewhat ironic that the original intent in creating the Māori electorates – an emphasis on a temporary franchise – is almost the one remaining vestige of that intent today. The century-old-electoral guarantee of Māori representatives being elected in Māori seats ceased in 1967. The fixed number of seats that was designed to preserve geographic proportionality was modified in 1993 to reflect proportionality in population. Most, but not all, of the disparities between the electoral systems have been removed. Casting a party vote under MMP has eliminated the separation many still perceive exists between New Zealand electors on the general roll and those on the Māori roll. Finally, since the number of Māori electorates now depends on those identifying as Māori to continue to choose to enrol on the Māori roll, the Māori electorates are, in one sense, once again temporary features of New Zealand’s electoral system.
Suggestions for further reading / links
McClelland, Sarah, 1997. ‘Māori Electoral Representation: Challenge to Orthodoxy’, New Zealand Universities Law Review, Vol. 17, June, pp. 272-291.
Mulgan, Richard, 1989. Māori, Pakeha and Democracy, Oxford University Press, Auckland.
The Royal Commission on the Electoral System, 1986. Report of the Royal Commission on the Electoral System: Towards a Better Democracy.
Waitangi Tribunal, ‘The Beginnings of Māori Representation in Parliament’, Department of Justice, Wellington. Available at: http://www.waitangi-tribunal.govt.nz/reports/viewchapter.asp?reportID=C04FF009-8245-455E-9BF2-A8998413132F&chapter=8
John Wilson
Research Analyst
Law & Government
Parliamentary Library
Appendix 1: Māori Members of Parliament listed by year:
1868-1870:4 Māori MPs out of 76 MPs (5.26%)
1871-1875:4 Māori MPs out of 78 MPs (5.12%)
1876-1879:4 Māori MPs out of 88 MPs (4.54%)
1879-1881:4 Māori MPs out of 88 MPs (4.54%)
1881-1884:4 Māori MPs out of 95 MPs (4.21%)
1884-1887:4 Māori MPs out of 95 MPs (4.21%)
1887-1890:4 Māori MPs out of 95 MPs (4.21%)
1890-1893:4 Māori MPs out of 74 MPs (5.40%)
1893-1896:5 Māori MPs out of 74 MPs (6.75%)
1896-1899:5 Māori MPs out of 74 MPs (6.75%)
1899-1902:5 Māori MPs out of 74 MPs (6.75%)
1902-1905:5 Māori MPs out of 80 MPs (6.25%)
1905-1908:5 Māori MPs out of 80 MPs (6.25%)
1908-1911:5 Māori MPs out of 80 MPs (6.25%)
1911-1914:5 Māori MPs out of 80 MPs (6.25%)
1914-1919:5 Māori MPs out of 80 MPs (6.25%)
1919-1922:4 Māori MPs out of 80 MPs (5.00%)
1922-1925:4 Māori MPs out of 80 MPs (5.00%)
1925-1928:4 Māori MPs out of 80 MPs (5.00%)
1928-1931:4 Māori MPs out of 80 MPs (5.00%)
1931-1935:4 Māori MPs out of 80 MPs (5.00%)
1935-1938:4 Māori MPs out of 80 MPs (5.00%)
1938-1943:4 Māori MPs out of 80 MPs (5.00%)
1943-1946:4 Māori MPs out of 80 MPs (5.00%)
1946-1949:4 Māori MPs out of 80 MPs (5.00%)
1949-1951:4 Māori MPs out of 80 MPs (5.00%)
1951-1954:4 Māori MPs out of 80 MPs (5.00%)
1954-1957:4 Māori MPs out of 80 MPs (5.00%)
1957-1960:4 Māori MPs out of 80 MPs (5.00%)
1960-1963:4 Māori MPs out of 80 MPs (5.00%)
1963-1966:4 Māori MPs out of 80 MPs (5.00%)
1966-1969:4 Māori MPs out of 80 MPs (5.00%)
1969-1972:4 Māori MPs out of 84 MPs (4.76%)
1972-1975:4 Māori MPs out of 87 MPs (4.6%)
1975-1978:6 Māori MPs out of 87 MPs (6.89%)
1978-1981:8 Māori MPs out of 92 MPs (8.69%)
1981-1984:6 Māori MPs out of 92 MPs (6.52%)
1984-1987:6 Māori MPs out of 95 MPs (6.31%)
1987-1990:5 Māori MPs out of 97 MPs (5.15%)
1990-1993:6 Māori MPs out of 97 MPs (6.18%)
1993-1996:7 Māori MPs out of 99 MPs (7.07%)
1996-1999:16 Māori MPs out of 120 MPs (13.3%)
1999-2002:16 Māori MPs out of 120 MPs (13.3%)
2002-2005:20 Māori MPs out of 120 MPs (16.6%)
2005-2008:23 Māori MPs out of 121 MPs (19.0%)
2008 - : 20 Maori MPs out of 122 MPs (16.4%)
