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Te Aho, Linda --- "Editor's introduction - special issue - Tikanga Maori me te Mana i Waitangi Maori laws and values, Te Tiriti o Waitangi, and human rights" [2007] NZYbkNZJur 2; (2007) 10 Yearbook of New Zealand Jurisprudence i

Last Updated: 24 April 2015

Editor’s Introduction

This special edition of the Yearbook arises out of two symposia hosted by the Waikato University School of Law in 2003. Rather than exhaustive research on every subject matter, the primary purpose of this issue is to record valuable contributions in a permanent form and make them available to a wider readership. Part One of this special edition embodies the proceedings of a symposium entitled Tikanga Māori – Māori Laws and Values hosted by Te Piringa, the Māori law staff collective at the Waikato Law School. Part Two comprises the proceedings of a symposium entitled Te Mana i Waitangi

- The Treaty of Waitangi and Human Rights a symposium jointly hosted by

the Waikato Law School and the Human Rights Commission.

A. Tikanga Māori – Māori Laws and Values

The uncertain future of the ‘old traditions and customs’ (in 1906 at least) is

reflected in Makereti Papakura’s opinion:

The old Māoris, those I mean, who have not given up their old traditions and customs in favour of European ways of living are gradually fading away...The modern native is a very fine person, I know, but still he has forgotten much.¹

During the 1970s, Māori actively challenged the monocultural status quo of the time and asserted their ancestral rights as tangata whenua over the land, their rights as first people of this land. As a result of the momentum created during that time, and against the backdrop of significant economic restructuring,² Māori successfully revived their indigenous language as an official language of Aotearoa/New Zealand. As a result of that struggle, the Māori language is now taught from preschool level through to university level, and in 2002, broadcasting in the Māori language began on Māori television. As at 2007 the Māori language was spoken fluently by some 20 per cent of the Māori population. With the survival of the Māori language ensured, there is a corresponding need to ensure the survival of tikanga Māori as part of this ongoing renaissance. The immediate challenge for Māori is to reprioritize tikanga Māori as the law by which we live. In the wise words of LaDonna Harris, Comanche Leader:

1 Paul Diamond, Makereti (2007) 201.

2 Jane Kelsey, The New Zealand Experiment (1995) 20; Examples of such challenges include the Land March of 1974 and the occupation of the Raglan Golf course which was situated on land taken by the New Zealand Government for certain public purposes, and not returned to the original Māori owners when no longer needed for those purposes. Kelsey provides a detailed analysis of the impacts of and alternatives to that restructuring ‘experiment’.

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We must take pride in our culture and live our values day to day, and not just talk about them in a mystical way. ³

Tangata whenua systems of law and government existed before colonization by the British. ‘Tikanga Māori’ and ‘Māori customary law’, are terms (not necessarily interchangeable) that embody the values, standards, principles, or norms that indigenous Māori have developed to govern themselves and which many Māori consider to be the first law of Aotearoa/New Zealand.⁴

It is appropriate that this special issue begins with excerpts from a panel discussion entitled ‘He Tikanga e Pā ana ki a Tainui – Tikanga – Some Tainui experiences’. During the discussion highly esteemed elders from the local tribes of Waikato-Tainui talked about tikanga and responded to questions from the audience. On the panel were the late Ngahinaturae Te Uira, rūruhi,⁵ translator extraordinaire, expert in te reo Māori, and recipient of Te Tohu Amorangi, an award given to people who have made an academic contribution to the University of Waikato; Iti Rawiri, rūruhi; the late Bob Rawiri (then Chair of Ngā Marae Toopu);⁶ and Koroneihana Cooper, respected kaumatua and advisor to the Police.

Some of the key themes raised during the interactive discussion included a challenge for the University of Waikato to collaborate more meaningfully with the tangata whenua in whose tribal area the University is situated. The panel also discussed the significance of the Waikato River as an ancestral river and roles of women in Waikato-Tainui, and in particular tikanga relating to karanga. The kaumātua emphasized that although they all hailed from Waikato- Tainui, each iwi and hapū that affiliate to the Tainui Waka confederation, such as Waikato, Maniapoto, Raukawa, and Hauraki, has their own tikanga. We were also fortunate to have participating in the symposium, respected kuia, Hinekahukura (Tuti) Aranui, who once held the position of kuia of our law school, and Elizabeth (Noki) Haggie who currently holds that position.

3 Keynote Speech 6^th World Indigenous Peoples Conference on Education, University of

Waikato in 2003.

4 Ani Mikaere, ‘The Treaty of Waitangi and Recognition of Tikanga Māori’ in Waitangi

Revisited - Perspectives on the Treaty of Waitangi (2005) 330, 341-342.

Rūruhi is a word peculiar to Waikato-Tainui peoples, meaning tino kuia, or most especial

female elder.

6 Ngā Marae Toopu is a collaborative group of marae that affiliate to the Tainui waka. Both Ngahinaturae Te Uira and Bob Rawiri passed away in 2007 and this special edition pays special tribute to these pillars of Tainui in ‘Poroporoaki – Farewells and Acknowledgements’, above.

2007 Introduction iii

In order to provide some context to the panel discussion, the short paper entitled ‘Tikanga Māori, Historical Context and the Interface with Pākehā law in Aotearoa/New Zealand’ provides historical context and explanatory commentary on tikanga raised by the elders during their panel discussion.

The second session of the symposium was broadly entitled ‘Ngā Tikanga Māori me ngā Kooti, Tikanga Māori and the Courts’. In this session Te Piringa, the Māori law staff collective, embraced the opportunity to acknowledge its two founding members: Judge Stephanie Milroy of Tūhoe and Te Arawa descent, and Ani Mikaere of Ngāti Raukawa.

Judge Milroy was appointed to the bench of the Māori Land Court in 2002. Perhaps her most significant contribution to the Waikato Law School was her critical role in concretising, developing and implementing the unique vision of a bicultural legal education, which is central to the School.⁷ To borrow the words of a colleague, Judge Milroy ‘embodied and carried the bicultural vision and spirit of this Law School’. In her paper, ‘Ngā Tikanga Māori and the Courts’, Judge Milroy considers the ‘split personality’ of her role in the Māori Land Court of administering the Te Ture Whenua Māori (Māori Land Act) 1993 – essentially Pākehā law imposed by a Pākehā institution on Māori land – in the context of some difficult issues facing our Māori people.

Ani Mikaere is well known for her landmark Master of Jurisprudence thesis ‘The Balance Destroyed: The Consequences for Māori Women of the Colonisation of Tikanga Māori’ which examines the consequences of colonisation on Māori women.⁸ Ani contributed to both symposia covered by this special edition. In Part One Ani’s paper is entitled ‘Tikanga as the First Law of Aotearoa’ in which she shares the view that, although there is diversity in terms of tikanga (both from one iwi to the next and also from one hapū to the next) at the core of that diversity there are a set of common values underpinning the way in which we practise our tikanga. Ani argues that those underlying principles make us who we are and as long as we maintain those principles, there can be diversity in and adaptation of our tikanga.

Our esteemed Tainui rūruhi Ngahinaturae Te Uira had spoken in the first session about ‘the power of the stroke of a pen’ in relation to the extensive confiscation of our lands in the Waikato.⁹ Both Judge Milroy and Ani Mikaere are shining examples of the power of the pen in terms of the impact that their

7 Stephanie Milroy Waikato Law School: An Experiment in Bicultural Legal Education

(unpublished LLM thesis, Waikato Law School, 1996) 1.

8 Degree of Master of Jurisprudence Thesis, University of Waikato 1995, now reprinted as Volume One, Mana Wahine Thesis Series (International Research Institute for Māori and Indigenous Education, Auckland, 2003).

9 See Waikato Raupatu Claims Settlement Act 199 .

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respective and joint writings have had on many students and academics, throughout all of the New Zealand University communities, wānanga, and in overseas institutions. They are remarkable women; clear in thought, consummate in writing, and consistent in their challenge for Māori not to settle for less.

In the third and final session of the symposium, we were fortunate to have Moana Jackson speak about his views on tikanga Māori. My former colleague, now Judge of the Māori Land Court, Craig Coxhead, had recently read an article in which Moana criticised the Crown for repeatedly redefining Māori, and so it was with some self-confessed nervousness that Craig attempted to introduce Moana in a way that did not redefine Moana! Craig did, however, sincerely acknowledge Moana’s support for the Law School at Waikato from its inception – particularly noting Moana’s ongoing support for the Māori Law staff and the Māori law students. Moana’s paper is entitled ‘It’s Quite Simple Really’ in which Moana, in his typically lyrical and humorous way, explains how tikanga develops and evolves to meet new situations.

B. Te Mana i Waitangi - The Treaty of Waitangi and Human Rights

Part Two records valuable contributions from a symposium jointly hosted by the Waikato Law School and the Human Rights Commission in 2003. The first article sets the scene by means of one of many prophetic sayings of King Tāwhiao, the second Māori King. The saying asserts the resourcefulness of Māori. The paper explores how human rights concepts might complement tikanga Māori and assist Māori to prosper.

In the second session, skilled storyteller, Moana Jackson, shared some thoughts, not about human rights as generally understood, but rather about the right to be fully human. He takes us on a journey from a Spanish monastery to Whitianga explaining how our humanity as Māori, in a way similar to other indigenous peoples’ of the world, was reduced to the state of sub-humanity in the discourses of a coloniser’s world. In Moana’s view New Zealand as a nation cannot fully discuss ‘human rights’ until the Treaty of Waitangi is recognised as an expression of sovereignty never ceded by iwi and hapū.

In the next paper entitled ‘Seeing Human Rights Through Māori Eyes’, Ani Mikaere builds upon the ideas shared in her conference presentation earlier in the year, the transcript of which is published in Part One. Having revisited the context in which Te Tiriti o Waitangi was signed, Ani concludes that both the clear words used in Te Tiriti, and the context in which it was signed reveal a clear Māori intention to create space for the Crown to regulate the conduct of its own subjects, subject to the overriding authority of the rangatira and that the highly developed and successful system of tikanga that had prevailed within

2007 Introduction v

iwi and hapū here in Aotearoa for a thousand years would retain its status as first law in Aotearoa. The development of Pākehā law, as contemplated by the granting of kāwanatanga to the Crown, was to remain firmly subject to tikanga Māori. Ani goes on to challenge us to think carefully about the questions often asked in this context. For instance, instead of asking ourselves ‘to what extent must we make allowances for tikanga Māori insofar as it conflicts with human rights principles?’Ani insists that we should be asking ourselves ‘what do human rights principles have to offer by way of useful adaptation to or development of tikanga Māori in a contemporary context?’

In the final paper of this collection, Leah Whiu also looks closely at the sorts of questions asked around these topics. With reference to the seminal work of Paulo Freire as a platform, Leah cites the foreshore and seabed debacle as an illustration of ‘dehumanisation’ and proposes how Māori might reclaim our ‘lost humanity’. Leah calls for Māori to take action in reclaiming our tikanga as law by which we live in order to transform relationships, and in the context of the discussion about human rights, to fulfil the potential for us all to flourish.

C. Final comments and acknowledgements

Te Piringa, the Māori law staff collective at the Waikato Law School, continues its work to nurture an environment for meaningful legal education for Māori students at the Waikato University Law School, attempting to incorporate and reflect Te Ao Māori me ōna tikanga (the Māori world and its laws and values). These are not easy goals to achieve in the face of escalating economic pressures in the tertiary education environment. Nevertheless, the contributions shared at both symposia, and that we now share in this publication, form part of an ongoing commitment to a bicultural legal philosophy. Following the success of the tikanga symposium we must try to continue to nurture our links with the iwi in whose tribal region we lie. I take this opportunity to echo the farewells to Te Arikinui, Dame Te Atairangikaahu, and to Bob Rawiri and Ngahinaturae Te Uira, all of whom are now taken from this world. I take too, the opportunity to thank all of the repositories of knowledge and skill who contributed to both symposia. I thank Thelma Fisher-Te Wake for organizing both symposia and for transcribing; our law school whaea, Elizabeth (Noki) Haggie, for organizing the attendance of kaumātua; Matiu Dickson for chairing session one of the tikanga symposium; and Craig Coxhead for chairing session three of the tikanga symposium and assisting in preparing the transcript of that session for publication. I thank the Human Rights Commission for initiating the symposium on the Treaty of Waitangi and Human Rights and Sir Paul

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Reeves for chairing it. Finally I thank Rahui Papa for specialist cultural advice and Janine Pickering for her valuable administrative and editorial assistance in producing this special edition.

Linda Te Aho

Editor

Yearbook of New Zealand Jurisprudence