Indigenous Issues in New Zealand

The session was held at the Ōrākei) Marae and was chaired by Deputy Chief Judge Caren Fox of the Māori Land Court.  

Crown Obligations to Ngāti Whātua Ōrākei

The first speaker was Sharon Hawke who spoke on Crown Obligations to Ngāti Whātua Ōrākei.  

She began telling the story of Papatūānuku or Mother Earth. In Te Ao Māori she is seen as the birthplace of all things, and the place to which we all return.  She is “the warrior in us”, and that spirit that each of us has comes from her.  However we, as a collective, have hurt her.  

Ms Hawke described the whakapapa (genealogy) that links her iwi, Ngāti Whātua, to Papatūānuku.  Ngāti Whātua first came to Tāmaki Makaurau (Auckland) in the 1740s.  They settled permanently in 1835 and have been there ever since.  However, colonisation in the mid-19th century brought with it war, disease and dislocation from Papatūānuku.  By the turn of the century there had been significant population shifts - the Pākehā  population had declined significantly while the Pākehā  (European) population had increased almost tenfold.  

Ngāti Whātua’s relationship with the Crown was formalised by Te Tiriti o Waitangi (the Treaty of Waitangi) in 1840.  However, the Treaty’s promise of “fair play” and the exchange of land and knowledge was not realised.  Public works legislation was used to compulsorily acquire more land from Ngāti Whātua.  Ms Hawke highlighted the decision in 1908 to lay a sewer pipe across the beach in front of the Ngāti Whātua village, which led to an outbreak of typhoid.  

By 1951, all that remained of Ngāti Whātua’s land was a quarter-acre of cemetery.  In Ms Hawke’s words, “we had no Papatūānuku, we had no whenua, we had no land”.  The village site was wanted by the Crown for a park, so in 1952 the remaining inhabitants were evicted by their homes.  Some were torched while others were demolished.  

Ms Hawke’s father, Joe Hawke, was a young boy at the time of the evictions.  She said that this was what inspired him to fight for change.  In 1977 Mr Hawke led the occupation of Bastion Point, to prevent land that Ngāti Whātua hoped to get back from being subdivided and developed. 

Ms Hawke then described the Waitangi Tribunal process, the passing of the Ngāti Whātua Ōrākei Claims Settlement Act 2012 and subsequent litigation.  

She concluded by emphasising that Te Tiriti o Waitangi is a contract and that the Crown has failed to honour its obligations under this contract.  


Te Ao Mārama:  A Transformative Justice Model for the New Zealand District Court

The next speaker was Chief Judge Heemi Taumaunu of the New Zealand District Court.  He outlined his transformative Te Ao Mārama model for the District Court. 

The model is inspired by the Māori creation myth, where the separation of Ranginui, the Sky Father and Papatūānuku, the Earth Mother created “te ao mārama” or “the world of light”.  This allowed their children, who had lived in a state of perpetual darkness between their parents, to move “mai te pō ki te ao mārama” (from the darkness to the enlightened world).

Judge Taumaunu outlined issues such as the overrepresentation of Māori in the criminal justice system, and described the widespread sense that defendants, whānau (families) and victims are leaving the current justice system feeling unheard and unappreciated.  

The Te Ao Mārama model seeks to transform the District Court into a place here everyone – whether they are defendants, witnesses, complainants, victims, parties, or whānau – can come to seek justice, regardless of their means or abilities, their culture or ethnicity, of who they are or where they are from

The model will incorporate best practices from the specialist courts into the mainstream criminal jurisdiction.  Doing so will ensure that everyone gets the benefit of solution-focused judging.  This involves:  identifying underlying risks and needs; bringing the strength of the community and iwi into court; better co-ordination between the courts and government agencies; developing plans to address “drivers” of offending; using plain language and toning down formalities in court; and infusing Tikanga Māori (Māori customary practices) and Te Reo Maori (the Māori language) into court processes.  

The Judge concluded with the following whakataukī (proverb):

He iti te mokoroa, kahikatea teitei ka hinga!

Although the borer grub is small, it can fell the tallest tree in the forest!

To achieve a great feat, what is required is persistence, humility and enduring commitment.  And, as Judge Taumaunu put it, “we are not going to get anything, or anywhere, unless we start today”. 

 

The Treaty of Waitangi, The UN Declaration on the Rights of Indigenous Peoples, and Indigenous Constitutional Issues in New Zealand

The final speaker was Associate Professor Claire Charters of the University of Auckland.   Her focus was on realising tino rangatiratanga or sovereignty for Māori under Te Tiriti o Waitangi, as well as indigenous people’s self-determination under the Declaration.  

Although self-determination is recognised as the most important right in the Declaration, a question has arisen as to who is deciding what this actually means.  As efforts to realise the Declaration have increased, so too has state and judicial jurisdiction to interpret it, to the exclusion of indigenous people’s voices. There is now a proliferation of bodies and tribunals, at both the international and domestic levels, with authority to interpret the Declaration.  This can lead to inconsistent jurisprudence and “forum shopping”.  

However, the most worrying issue for Associate Professor Charters is one of adjudication:  the irony that indigenous peoples do not have self-determination over how the right to self-determination under the Declaration is interpreted.  In her view, judicial officers should make space for, and possibly even defer to, indigenous peoples’ interpretations of self-determination.  This might require modified rules of evidence and development of new doctrines of jurisdiction over indigenous matters.  At the very least, domestic courts might pro-actively review governmental and legislative decisions that are inconsistent with indigenous people’s understandings of their rights under the Declaration.  

Associate Professor Charters then outlined recent recommendations for constitutional change in New Zealand based on the Declaration and Te Tiriti, including the Matike Mai report.  She emphasised that achieving greater self-determination for Māori, to the extent required under Te Tiriti or the Declaration, would likely require constitutional change, given New Zealand’s model of parliamentary sovereignty.  However, she was optimistic that such change is on the horizon.  

Finally, Associate Professor Charters turned to the question of how the New Zealand courts, and possibly other state courts, should address the reality of indigenous authority and sovereignty.  In her view, the courts should acknowledge that the Crown’s claim to legitimacy is questionable as a matter of law (if not as a matter of political reality). This does not mean that the courts should put down their pens.  Rather, they might expressly justify their continued role on the basis that as state courts they are authorised as a matter of state law to determine disputes, and as long as state law is a political reality with some (although not exclusive) legitimacy, they must continue to do so.  The courts’ increasing recognition of Tikanga Māori in the law is a step in the right direction.