New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 16 April 2015
[M]emory is the site of our remembrance of the past; our compass as we navigate our way in the present; and the site of our dreams. Dreams help us project our imagination into the future.1
This simple yet profound statement by Ngugi wa Thiong'o provides an apt beginning for this collection of writings by Maori lawyers and legal academics. A shared view that remembering and understanding the past is crucial is clearly discernable throughout the contributions. With an appreciation of the past providing a solid foundation, the papers identify constructive strategies for the present and, despite the often difficult challenges they raise, display a quietly determined optimism for the future.
Moana Jackson's chapter looks at the tireless efforts of indigenous peoples to achieve recognition of their status and rights in the international arena. He discusses the involvement of Maori in the drafting of the United Nations Declaration on the Rights of Indigenous Peoples, noting that it has been an experience "in which the often frustrating task of dealing with one Crown in Aotearoa/New Zealand is exacerbated by having to deal with over one hundred of them in Geneva". Most significant, according to Jackson, is the colonising construct within which United Nations processes operate, a construct which historically defined indigenous peoples as less human than their colonisers. He traces the origins and development of this viewpoint and explains how it has continued to manifest itself in the behaviour of various state representatives (including those from New Zealand) as they have bickered over the wording and interpretation of the Declaration. Despite the obstacles that he describes, however, he points out that "our tipuna did not leave us a legacy oftimidity". He concludes that it is a matter of obligation, both to the generations who have gone before and to those who are yet to come, that the struggle to reclaim our full humanity be continued.
1 Wa Thiong'o, Ngugi "Church should empower Africans", speech
delivered at the
57th Assembly of the National Council of Churches, 24 August 2004.
Kerensa Johnston continues the international law focus by considering the potential for international human rights law to assist Maori women seeking protection against discrimination. Johnston argues that the Crown's actions and policies have undermined the role and status of Maori women, leading to their marginalisation from the political life of the state. She discusses the international law instruments that are available to indigenous women who seek to challenge discriminatory laws and practices, paying particular attention to the Women's Convention and the Optional Protocol to the Convention on the Elimination of Discrimination Against Women. Important questions are raised about the appropriateness of utilising international human rights law to deal with issues affecting indigenous women, given criticism that it fails to recognise the significance of community or the indigenous struggle for self-determination. Despite these shortcomings, Johnston concludes that Maori women should consider submitting an individual complaint to the Women's Committee based on a breach of article 7 of the Women's Convention, which concerns the state's failure to eliminate discrimination against women in political and public life. On the other hand, she suggests that international fora may not provide the most appropriate means of remedying arguably discriminatory cultural practices that might be sourced in tikanga Maori. She acknowledges the complexity of issues such as women's speaking rights on the marae, noting that they may reflect the complementarity of male and female roles rather than discrimination against women and also acknowledging that these roles as they are currently constructed may be more reflective of the influence of colonisation than they are of tikanga Maori. However, even on the assumption that such practices are both discriminatory and sourced in tikanga Maori, Johnston suggests that taking a case to the Women's Committee would, while perhaps serving the useful purpose of triggering serious re-examination amongst Maori of potentially discriminatory practices, ultimately be less productive than committing to a process whereby Maori principles and practices as they relate to Maori women might be rediscovered.
The rediscovery of such principles and practices is the subject-matter of Kirsten Gabel's paper, which examines the role of taonga-a-waha (oral forms of expression) in Maori society. She suggests that taonga-a-waha reflected the complementary relationship between men and women but that the importation of Western values has led to the devaluing
of female taonga-a-waha (such as the karanga) and a corresponding overvaluing of male taonga-a-waha (such as the whaikorero). She argues, for example, that the karanga has "an intense and deep relationship . . . with both the traditional and contemporary spiritual realms" but that, due to the influence of Pakeha ideals it is often now regarded as being merely "a curtain-raiser for the main whaikOrero event". Importantly, she has chosen to express her views about the true significance of female taonga-a-waha in to reo Maori, a deliberate choice which would clearly meet with approval from Ngugi wa Thiong'o:
Language is a way of organizing and conceptualising reality and it also becomes a bank for the memory generated by human interaction with the world. Each language no matter how small carries its memory of the world.2
To write about the significance of the karanga in Maori is to consciously reassert the Maori memory, thereby actively resisting what wa Thiongo'o has called the planting of the coloniser's memory on the intellect of the colonised.' Gabel concludes that Maori must not merely reclaim our traditional knowledge about the karanga, but that we must also reinstate its physical presence on the marae. This will require no less than the "sustained and collective assertion by Maori women of their vocal capacities on the marae". It is only by taking such action that the gender complementarity that was formerly inherent in tikanga Maori can be reclaimed.
The link between performing the karanga and fulfilling leadership roles within the whanau and hap is clearly illustrated by the kuia interviewed for Matiu Dickson's piece on Maori women and their experiences of the education system. Each of them were kai-karanga on their marae and each of them were leaders for their whanau and hapu. Despite their talents and abilities, however, Dickson concludes that they "were not given the opportunity to realise their full potential and therefore their contribution to their own whanau and hapu may have been less
than what it could have been". This he puts down to a colonial education system that introduced and perpetuated the idea that women were of less value than men. A lack of resources and gender-stereotyping had resulted in these women being forced to leave school early in order to earn wages to support their whanau. Meanwhile, their male kin were often given greater educational opportunities, deemed at that time to be appropriate for them. In later life, the women came to fulfil leadership roles and all expressed a determination that their own daughters and grand-daughters should have the educational opportunities that they had been denied. Despite the sacrifices that they had been expected to make, however, their resilience and generosity of spirit is revealed in Dickson's conclusion that "these kuia were generally optimistic about the future of Maori people and philosophical about the past".
The next paper, addressed to Maori secondary school teachers, is concerned with the impact of education on young Maori minds. It examines tikanga Maori as the practical expression of a philosophical view of the world that was unique to Maori, focusing particularly on Maori cosmogony which, it argues, is where the philosophical foundation of that world view is to be found. It also considers the effect that foreign influences, particularly Christianity, have had on that world view and, consequently, on tikanga Maori. It concludes that tikanga Maori has, to a large extent, been colonised by the influence of Christianity and Western law, resulting in the replacement of the once-central principle of gender balance with one of male dominance. The discussion is set within the context of Freire's concept of cultural invasion and conquest, whereby "the invaders penetrate the cultural context of another group . . . impos[ing] their own view of the world upon those they invade", a process which leads ultimately to "the cultural inauthenticity" of the invaded who, by mimicking the invaders, merely cement their position still further.4 The paper suggests that teachers of young Maori women and men are in a position to either sustain or deconstruct some of the harmful myths surrounding the roles and responsibilities of women and men according to tikanga Maori. It urges them to use their influence to do the latter, in particular by taking care not to force Christianity unquestioningly upon their pupils. In bringing a critical eye to bear upon the patriarchal influence of Christian principles
4 Freire, P Pedagogy of the Oppressed (30th Anniversary Edition) (2000) 152-3.
on Maori cosmogony, the paper argues, these teachers will contribute to the dismantling rather then the perpetuation of the ongoing project of colonisation.
Leah Whiu and Stephanie Milroy also cite Freire in identifying the key role that Maori must play in liberating themselves from the oppression of colonisation. Maori, they argue, "must ultimately face the source of oppression with the purpose of transforming ourselves, our lives and the fundamental basis of our inauthentic existence". Their chapter traces the establishment and development of Waikato Law School, a law school which has, since its inception, included biculturalism as one of its founding principles. Stephanie Milroy examines the terms "biculturalism" and "multiculturalism" in the context of education policy, before turning to examine biculturalism in more depth. Her discussion reveals that biculturalism is a contested concept but concludes that, when applied to a law school, it must include "transfer and sharing of resources and decision-making power; acknowledgement of our history; and practices and procedures that deliver a legal education service that works for Maori as well as for Pakeha". She goes on to consider the place of biculturalism in the founding of Waikato Law School. In the second part of the chapter, Leah Whiu examines the experiences of Maori students who have attended Waikato law school and reaches the sobering conclusion that many have been disappointed at what they have perceived to be a lack of commitment to the founding principle of biculturalism. She summarises the progress made since the law school's establishment and outlines a range of suggestions designed to progress the bicultural project further, concluding that "[t]he bicultural objective is not just a site for struggle, it is symbolic of a much bigger project of transformation and liberation from oppression".
It is not surprising, perhaps, that the vast majority of full-time Mdori academic staff at Waikato Law School have been women.' As Caren Wickliffe points out, Maori women have been at the forefront of Maori demands for justice in Aotearoa. Her chapter carefully tracks the role that the law has played in undermining Maori self-government. It
5 Of the twelve Maori academic staff that have worked full-time at Waikato Law
School at different periods since its inception, all but two have been women.
describes the process whereby Maori have become subject to imposed models of government and law. While celebrating the contribution of a number of exceptional Maori women in the face of aggressively assimilationist policies, she concludes that overall "the law as a tool of assimilation, colonisation and social control has taken its toll on the status and role of the great majority of women". Maori women have been marginalised politically and denied access to justice. Their wellbeing, and that of their whanau, has been detrimentally affected as a result.
The impact of colonisation is also a theme in Craig Coxhead's paper on Maori and the media reporting of crime. He supports Ranginui Walker's view that the media "functioned and functions to maintain the status quo and the structural relationship of Maori subordination". His chapter, prompted by a front page article in the Waikato Times headed "Warning: this man kills" and accompanied by a mug shot of a young Maori man, focuses on the media's negative portrayal of Maori. In truth, the article in question had contained a number of factual errors, errors for which an apology was printed on page three the following night. As Coxhead notes, however, the apology would have done little to alter the impact that the story had already had on the newspaper's readership. He provides historical examples of the media's damaging depiction of Maori and goes on to consider the importance of news values as a determining factor in the selection of topics deemed by journalists to be newsworthy. He argues that with the overwhelming majority of journalists being Pakeha, it is unsurprising that the bulk of media reporting continues to be aimed at a predominantly Pakella audience. Coxhead also examines the media obsession with reporting crime and the association commonly made between Maori and crime, concluding that "[t]his association . . . leads to an out-of-proportion amplification of a situation, resulting in sensationalism and in Maori being projected in a negative manner".
Linda Te Aho looks at important issues raised in the wake of Treaty settlements. She notes that the settlement process has resulted in the return of assets to claimants and the establishment of Maori economic entities designed to receive and manage those assets. She also points out that company structures have been set up for the purpose of wealth creation, and her paper explores some of the dilemmas that Maori directors face as they seek to balance commercial objectives with Maori
philosophies. Te Aho provides examples of how tikanga may clash with
commercial goals, and raises the very real possibility of "corporate
hid[ing] behind the veil of these corporate structures whilst mimicking the
exploitative behaviour of their non-Maori counterparts".
Such behaviour, she
suggests, demonstrates Freire's observations about the internalisation by the
oppressed of the oppressor's values.
Despite the commercial pressures that
inevitably impinge upon a company with a profit-making incentive, however, Te
that there are possible solutions to this seemingly intractable
problem: "[b]eing both indigenous and a company director need not
exclusive". She proposes a range of ways in which such companies may conduct
their affairs while maintaining consistency
with Maori philosophical
Jacinth. Ruru also discusses the management of assets, in this case, the country's fourteen national parks, which are currently owned and managed by the Department of Conservation. She evaluates Waitangi Tribunal jurisprudence on claims concerning natural resources, concluding that a Tiriti management model would endorse the Crown's right to govern while upholding the Maori right to exercise tino rangatiratanga. Her assessment of the present management regime is that it clearly falls short with respect to the goal of endorsing the Maori right to tino rangatiratanga. Drawing on the work of Tania Ruru, she evaluates a variety of ways in which Maori representation could be expressed in resource management legislation and identifies those representation models which she believes would best reflect the Treaty relationship between the Crown and Maori. She then suggests a number of avenues which would lead to better provision for the exercise of tino rangatiratanga by Maori with respect to the management of national parks. These range from better use of provisions within the current legislative regime, to amendment of the legislation, to replacing the legislation altogether and creating an entirely new management regime. While she provides a spectrum of possible ways forward, doing nothing is clearly not regarded as a viable option: her conclusion is that the right to express tino rangatiratanga must be given effect to in the management of national parks, and that in order for this to occur "attention to this legislation is urgently required".
In the final chapter, Tania Waikato looks at the exercise of tino rangatiratanga over another taonga: matauranga (traditional
knowledge). She points out that "[i]n the space of a year, the instances of Maori traditional knowledge being used by non-Maori without authorisation in commercial products, branding and other media has increased exponentially" and finds that the current intellectual property rights regime offers little or no protection from such exploitation. She considers that the reasons for this are derived from the fundamental ideological clash between the two cultures. It is not, she suggests, that the current intellectual property rights regime is ill-suited for the purposes for which it has been designed; rather, that it was never designed for matauranga and can therefore never hope to meet the needs of Maori. That Maori have been proactive in seeking to have their traditional knowledge protected is apparent from such initiatives as the Flora and Fauna claim currently being taken before the Waitangi Tribunal and the 1993 Mataatua Declaration. Waikato contends that the answer does not lie in reform of the current legislative regime, arguing instead that a new protective model must be devised, based on Maori ideological concepts and giving Maori ultimate control. She describes this as "a hybrid model, a Pakeha law based on Maori principles" and, while noting the numerous difficulties posed by pursuing such a course, nevertheless believes that it is important to try and formulate a culturally appropriate protection scheme "while there is still something left to protect".
While highly diverse in their choice of subject-matter, the contributors to this journal have much in common: a firm belief in the value of Maori ways of thinking about the world; a commitment to preserve that which is authentically Maori; and a preparedness to utilise whatever tools are at hand in order to ensure Maori survival. Importantly, this concept of survival is not limited to outmoded notions of blood quantum or to conducting a head count of people with Maori ancestry. While it was once widely believed that Maori were destined for extinction, a reversal in population trends since the late nineteenth century means now that "as long as there are humans on this earth there is the prospect that there will be some with Maori ancestry".6 The crude measure of
6 Winiata, W "The Reconciliation of Kawanatanga and Tino Rangatiratanga", The
Rua Rautau Lecture 2005, Rangiatea Church, (kaki, 30 January, 2005, 4.
mere human survival,' however, is not in itself a particularly useful gauge of cultural endurance. The important question now, as recently posed by Whatarangi Winiata, is whether a substantial number of people of Maori descent continue to live "according to kaupapa and tikanga tuku iho that are distinctive in the global cultural mosaic".8 This collection of writings, brimming with uniquely Maori ideas and strategies for the future, exudes a tenacity of spirit that bodes well for our cultural survival.
Ma te tokomaha ka ka" te ahi.
By the many will the fire be kept burning.