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Jackson, Moana --- "It's quite simple really" [2007] NZYbkNZJur 6; (2007) 10 Yearbook of New Zealand Jurisprudence 43

Last Updated: 24 April 2015

It’s Quite Simple Really

_{Moana Jackson}^*

Tēnā tātou katoa.¹

I accepted the invitation to come to this symposium because I wanted to catch up with the people of Waikato. It is a pleasure to be back here but as I said earlier today, I was somewhat nervous and, nervous for a couple of reasons which I would like to begin with. When I was first asked to come they didn’t give me a topic to talk about. That was a bit of a problem for my Kahungungu side, it was no problem at all for my Ngāti Porou side to talk about what I wanted. A long time ago I went to law school at Victoria University and to be honest I didn’t learn a great deal. We had to in those days do a number of compulsory non-law papers – two of which were English and Latin. What I learnt from Latin helped me to figure out what Pākehā words mean. Most Pākehā words derive from Latin so that’s been really helpful.

What I learnt from English actually came from a telling off I got when I handed in my first assignment because we were given three plays to study all at the same time about English kings. The first was Shakespeare’s King Lear, which was about a mad English king who stumbled around in the middle of the night cursing his whānau. The second play was by Christopher Marlowe called Edward II which was about another mad English king who had an affair with his page boy and ended up being killed by his soldiers. The third play was by Robert Bolt about Henry VIII who had six wives and they drove him mad. There are certain symmetries between the stories of Henry VIII with my tupuna Kahungungu. Except, when Kahungungu’s wives drove him mad, he just took himself off to somewhere else. What I learned from studying those three plays was that nothing much has changed in the royal family. The second thing I learned was when I had to hand in the assignment on the plays I got a note from the tutor saying ‘Come and see me Mr Jackson’. So I went to see him and he said ‘What’s your title?’ I didn’t quite know what he meant. Was I Sir Moana Jackson? Then he said ‘every assignment must have a title’. I have never forgotten that.

* Moana Jackson is of Ngāti Porou and Ngāti Kahungunu descent. A graduate in law from Victoria University he works mainly on Treaty/constitutional issues and international indigenous rights. He has served as chair of the Indigenous Caucus of the United Nations Working Group on the Rights of Indigenous Peoples and is a member of the UN Committee on Indigenous Rights. He has also sat as a judge on the International People’s Tribunal hearing indigenous claims in Hawaii, Mexico and Canada.

1 A greeting to all present.

2007 It’s Quite Simple Really 33

So when I came here, I had to try and think with some nervousness about the title of my kōrero. In the programme it says Ngā Tikanga and Contemporary Issues. I’ll talk about that, but I’ll talk about it under the title of ‘It’s Quite Simple Really’. I’d like to explain how that title came about.

My dad is Ngāti Porou, but he moved from the coast as a young man, met my mother who was Kahungungu tūturu and my dad basically never went back to Ngāti Porou. As I grew up one of the great influences on my life was my koro, my mother’s dad. The first time I had to come as a young graduate to do some work in Tainui was not long before my koro died and he came with me because I was nervous about coming to Tainui. We drove from Hastings to Hamilton and on the way I was trying to get some comfort from him because I was nervous about coming to Tainui. So I was dropping hints about how nervous I was and he was ignoring me. In the end I said, ‘Koro I’m really nervous’. He carried on driving. So I said ‘Koro, I’m really nervous’. He said

‘What’s your mother’s name?’ That’s a strange response to my nervousness. I said ‘Hinerakau’ he knew that, I mean he was her father. Then he said,

‘What’s her second name?’ I said ‘Mahinaarangi’² He said ‘It’s quite simple really, why are you nervous?’ When we came to Tūrangawaewae³ I of course realised what he meant.

In a sense the issues for me of tikanga in contemporary situations, the relationships between tikanga and Pākehā law are quite simple really. I don’t have the expertise or the wisdom that many in this audience have to analyse and discuss in depth what tikanga is. But I think I do have a sense of what those underpinning values are that Ani referred to this morning,⁴ of what if you like, is the puna (source) of our tikanga. I also have an awareness that tikanga like our people are not frozen in time.

Our people have never been a people who have been stuck in a rut, stuck in one place. We have developed, we have adapted and we have learned new skills. In a sense for me tikanga is like that. I was reminded of that a few years ago when I was living in Wainuiomata. I had got involved in a committee that had been formed to build an urban marae. It was an interesting use of words, an

‘urban marae’. Wainuiomata was of course in the rohe of Te Atiawa, although that’s contested by about 10 other iwi. That’s part of who we are. A lot of the Māori population in Wainuiomata are either Kahungungu, Ngāti Porou

2 This reference signifies the union between Mahinaarangi and Tūrongo which geneologically connects the people of Ngāti Kahungungu and Tainui.

3 Tūrangawaewae is the principal marae of the Tainui peoples and a national icon located in Ngāruawāhia. It is the official residence of the head of the Māori King Movement, currently King Tūheitia. The principal ancestral house on the marae is named Mahinaarangi.

4 See Ani Mikaere, ‘Tikanga as the First Law of Aotearoa’, above in Part One of this publication.

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or Tūhoe who had come down to Wellington in the Trade Training Schemes after the Second World War. So the idea of an urban marae in Wainuiomata was going to run into some unique problems about tikanga. It took over eight years to raise funds for the whare and there were fights and disputes all the way through. We got to a stage when the whare was ready to be opened and we had invited Taranaki to come down to for the opening. Ruka Broughton⁵ was still alive then and he was bringing an ope (a travelling group) from Taranaki to open the meeting house. The second to last meeting before the opening when I thought everything was plain sailing, a major issue erupted because one group suggested we should have venetian blinds in the meeting house. A huge debate ensued and it split the committee in half. People began to invent tikanga about venetian blinds. People from Ngāti Porou claimed that venetian blinds were invented in Tokomaru bay. At the last meeting before the opening we knew we had to resolve the issue. What I thought was a very wise decision, was made, in that we were not going to sort this out before the opening, we deferred the matter until after the opening so that we could put our minds to looking after our manuhiri. Everyone agreed.

The weekend of the opening arrived. We were in the wharekai at about 2 o’clock in the morning getting kai ready. Taranaki were expected to arrive at about four o’clock and suddenly someone came running into the kitchen and said ‘they’re putting up the venetian blinds!’ The venetian blinds faction had snuck into the whare and started putting them up. We rushed across to the whare and had this huge fight. We could hear the buses pulling up outside and we were debating the tikanga of venetian blinds. Another wise decision was made, since the others had succeeded in getting the blinds up along one wall, we decided to leave them up there but we would not put them up along the other wall until after the opening of the whare. The opening was beautiful. It was a lovely day and I was wandering around in the whare and people were walking around viewing the carvings and so on. I heard one of our manuhiri say to one of the kaumātua ‘How come you’ve only got blinds along one wall?’ Without skipping a beat, just like that he said ‘He tikanga tēnā. You will notice the venetian blinds are on the western wall, because in this rohe we cannot block the rising sun’. If you go to that whare today, you will still see the blinds only on the western wall. That has become the story. That has become the tikanga. You will hear Kahungungu in their whaikōrero talking about the sun rising in the west.

It seems to me that in a very basic sense it’s quite simple really that that is how tikanga develops and evolves to meet new situations. Often out of very human personal interactions, our people develop a way of explaining the situation.

Ruka Broughton was a Māori scholar of Ngā Rauru.

2007 It’s Quite Simple Really 35

The base line of that explanation to me was the core values of whakapapa, manaakitanga, whanaungatanga and so on. Out of those values comes the truth, which guide the way we do things. I have mentioned that that to me was part of what makes us unique. One of the things that has happened to us for over 160 years now is that people have come here from somewhere else and have tried to destroy our uniqueness, have tried to take away the things that have nurtured our tūpuna and will hopefully nurture our mokopuna in the future. If tikanga is put in a position where it is removed from the values of the stories which nurtured it then the tikanga is no longer a reflection of who we are. The tikanga in a sense then becomes culturally unsafe. And if the tikanga is unsafe, then I believe that as a people we become unsafe. One of the difficulties that I have had with some of the things that are happening today⁶ is that I think they run the risk of endangering our tikanga, and therefore endangering us. One of those things is related in a very real way to the current debate over the foreshore and the seabed.

Politicians will tell you that they paused to think about it, besides organising protest marches against our people,⁷ that it is a very complex legal issue. By that they mean a very complex Pākehā legal issue, when for me it is actually a very simple tikanga issue. My understanding about our relationship with Papatūānuku, is that it is a relationship of whakapapa. If Papatūānuku is our mother then the land, the beach, the seabed, the waters, and the rivers are part of our mana. That is, part of our tikanga, that in a sense she be kept and nurtured as a whole being. If decisions are made to chop off parts of our mother then it chops off to me parts of our tikanga. If you make tikanga unsafe you make us unsafe. The chopping off can occur in many ways. People here in Waikato know only too well that it was done with the stroke of a pen in the 19^th century with the raupatu.⁸ The pens produced certain words in the 1863 Settlements Act to justify, in the Crown’s terms, that raupatu. It could never be justified in terms of our tikanga but they invented a language to justify it for themselves, and it seems to me that a similar language is being used now in the foreshore and seabed debate which Ani touched on briefly this morning.⁹ It seems that if you use the language of rights, then whatever rights we have in relation to the foreshore and seabed come from our tikanga, they therefore come from

6 Some of the issues being debated at the time of the symposium included the Government’s outright rejection of the findings of the Waitangi Tribunal both in relation to Petroleum, and the Foreshore and Seabed.

7 This is a reference to Nick Smith MP for Nelson organising a march to protest against Māori

claims to the foreshore and seabed.

8 See ‘He tikanga e pā ana ki a Tainui – Tikanga some Tainui experiences’ above in Part One of this publication for more detailed reference to the massive land confiscation suffered by the peoples of Waikato-Tainui.

9 See Ani Mikaere, ‘Tikanga as the First Law of Aotearoa’, above in Part One of this publication.

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our whakapapa, they come from who we are. They are not granted to us by somebody from outside, if they are granted to us at all – they are granted to us by our tūpuna and by our atua. They are not granted to us to hold selfishly but rather to hold for our mokopuna. The language that is being used in the foreshore debate is the language which sources the rights, not in who we are, but in a set of arguments developed a long time ago in another place.

The language that is used, of customary title and customary rights, was invented in 16^th century Europe, when a man called Christopher Columbus was sent by the King of Spain to discover India. I’m not sure if the people living in India thought they were lost, but the King of Spain wanted to find them. Christopher Columbus set sail. He didn’t find them there. Instead he stumbled upon America. This says something about Spanish navigation. I’ve often wondered about this as I’ve looked at the map of the world. Looking at Spain, India was to the east and America was to the west, how could he set sail for India in the west and end up in the east? I never had an answer to that until the last Olympic Games and I was watching the rowing. I noticed a profound cultural difference because I noticed that when our people get into a waka and they want to go one way they row facing in the direction they want to go. What I noticed about Pākehā rowing when they want to go in a certain direction they row with their backs facing in the direction that they want to go. So Columbus got lost because he was sailing backwards!

Anyway he discovered India, thinking it was India at least, but stumbled on America and some of the tangata whenua came down and had a look to see who this manuhiri was and the story goes that thinking he was in India he said ‘here comes the Indians’ and the tangata whenua of America have been Indians ever since, red Indians, dead Indians, and so on. I often ask some of my tangata whenua friends ‘how do you feel about being called Indians?’ and they just laugh and say ‘thank goodness Columbus didn’t think he had discovered Turkey!’

Having stumbled upon what he thought was India, he then said ‘This now belongs to Spain. I found it. Therefore it’s now Spain’s’. He returned to Europe and said to the King ‘I found this huge space which is now ours’, which would have been news to the tangata whenua. Columbus was a great story teller. He began travelling around Europe, a kind of Columbus travelling road show and began to tell about this land he had discovered. He was a liar. He talked about gold growing on trees, diamonds cascading down waterfalls, beautiful women who couldn’t wait for a Spaniard to come on the scene. As other people began to hear about this in Europe, they began to think ‘Well how come Spain’s got that place? We should go there and claim a bit of it as well’. And they did.

2007 It’s Quite Simple Really 37

Fights began to develop between different European countries about who could have the biggest share of this new land that they had discovered. The tangata whenua were not a part of that debate of course.

Finally, a big hui was called in a city in Spain called Valladolid where all the leading lawyers of Europe were brought together to decide who this land of America belonged to. The first thing that they had to accept was that there were people living there and, that they may want to have a say in this. Well, okay there are people living there but they’re not really human. They are sub- human, humanus subte is the phrase they used. Then the debate was ‘well, if we go and take their land, what rights will they have once we’ve taken them?’ They didn’t question – ‘have we the right to take it?’ They assumed they had the right. So what would be left for the tangata whenua? The answer was that they were subhuman so they could have sub-rights and we will call those sub-rights ‘aboriginal rights’ or ‘customary title’ or ‘customary rights’. The language that is being used by the Government and by Pākehā lawyers is actually a language which confines us to a position of rights subordinate to the Crown. They are rights derived from the assumption that tangata whenua were somehow sub-human. It does not mean that the rights and title that we have customarily exercised derived from our tikanga. That means something abstracted from a debate in a Spanish city.

Many people since the Hauraki hui¹⁰ two weeks ago have begun to question the Crown’s use of that language. At the Hauraki hui on the foreshore, some of us suggested that if we had to use the notion of our rights that come from our tikanga in a Pākehā context we should at least give it a Māori name. The idea was thought up that we should establish that our rights come from our tikanga, come from our whakapapa, and our rangatiratanga and therefore we could call them tupuna rights and tupuna title because that’s where they have come from. Imagine my surprise then when I received earlier this week, the latest legal advice from the Crown Law Office to the Government and it has taken that term tupuna title and said it means the same thing as customary title. They have redefined, in less than two weeks, an attempt that our people made to distinguish between our absolute rights and their sub-rights. I think that whenever we enter into that sort of environment, that sort of discourse we run that risk. The things that are fundamental to us will be reclaimed, redefined and we then become unsafe. There are more ways than one that you can be made to be alienated from our tikanga and therefore from our whakapapa.

10 This was a meeting that was held in the Hauraki area from which came the Hauraki

Declaration opposing the Government’s foreshore and seabed policy.

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I would like to give just one more contemporary example of that process. Many of you will know that for a number of years in the United Nations in Geneva there has been a group meeting called the Working Group on the rights of the Indigenous Populations. One of the jobs that they have had is to draft a Declaration on the Rights of Indigenous Peoples. Many, many indigenous peoples, including Māori, have been involved in that process because it is seen as the first time that there was going to be an international world wide set of standards that others would have to recognise. It has been a really difficult process, made easier to begin with for the Māori people who were going, by an incident which happened in 1923 when a group of our tūpuna travelled to Geneva in Switzerland, where an organisation at that time called the League of Nations was in operation. This group of tūpuna travelled there because their tūpuna who had been travelling to England to try to get satisfaction from the English Queen were beginning to realise that there was no satisfaction in London. They thought if we could go to this new place called the League of Nations, we might get a hearing. They weren’t allowed in the door, the reason they weren’t allowed in the door was that the New Zealand Government which was at the League of Nations had said that these people have no right to be there. One of those koroua kept a diary of his trip and on the day that they were refused entry, he wrote in his diary ‘the corridors of this place are not yet ready to hear our voice’. In the mid-1980s the League of Nations had become the United Nations. Although their headquarters are in New York, the Human Rights division sits in Geneva, and so we went along with other indigenous peoples remembering the words of that koroua. Perhaps now

16 years later at that time the ‘corridors of that place’ might be willing to hear our voice. One of the key parts of Article 3 of the United Nations Draft Declaration on the Rights of Indigenous Peoples is what’s called the ‘right of self determination’.¹¹ This is a human right which acknowledges around the world that all peoples have the right of self-determination, and:

By virtue of that right they may freely determine political status and freely pursue their economic, social and cultural development.

That sounds to me like rangatiratanga. That iwi and hapū determine for themselves the social, cultural, political and economical development, which is what our people have been doing for centuries in this land. Article 3 became fundamental to all of the tangata whenua who travelled each year to Geneva. It was the ‘puna’ from which all the other rights in the declaration would spring.

11 The Declaration on the Rights of Indigenous Peoples has been negotiated for more than

20 years between nation-states and Indigenous Peoples. In September 2007 the UN General Assembly adopted the Declaration with an overwhelming majority of 143 votes in favour, only 4 negative votes cast (Canada, Australia, New Zealand, United States) and

11 abstentions.

2007 It’s Quite Simple Really 39

Relevant governments had consistently opposed the inclusion of Article 3. There are essentially two reasons why they oppose it. Although it is never stated I believe the first reason is that:

1. If you acknowledge that tangata whenua have the right to self-determination as peoples, then in the end you are acknowledging that tangata whenua are fully human. That they are no longer sub-human. I believe that is one of the grounds on which Article 3 has been opposed.

2. The other ground on which it has been opposed is that the Government simply does not want to acknowledge in a country like New Zealand that the self-determination or the sovereignty of our people was never given away, it was taken and that has been a view shared by many other governments.

It has been very hard to keep Article 3 intact. However we thought a breakthrough had been made when the New Zealand Government said that it would accept Article 3. After nearly 15 years it said yes we would accept Article 3. Last week they released their position paper on the United Nations Draft Declaration on the Rights of Indigenous Peoples and they have accepted Article 3 except they ‘tutu’d’¹² with the words. Instead of saying all indigenous peoples have the right to self-determination what they are now saying is that all indigenous peoples have the right of self-determination as enunciated in this declaration. Then they add a whole lot of other articles which actually make Article 3 meaningless. It seems to me that what they have done, again, is attempt to chop off part of our tikanga. A fundamental part of being ‘tika’ in Māori terms as I understand it is that we determine for ourselves what is best for us and for our mokopuna. If there is one thing that I grew up knowing, I have often heard long discussions between my Ngāti Porou father and my Ngāti Kahungungu koro, was that just as Kahungungu would never have allowed Ngāti Porou to infringe or damage the tikanga and kawa of Kahungungu neither would we have ever agreed that the Crown could do that. When we go to a marae in another rohe we will accept without question their kawa, we might sometimes think it a bit odd, at home we have the paepae on the right hand side of the whare, some iwi have it in front, some have it in side, some have it on the left, but we quite correctly have it on the right hand side! But we accept that other iwi will do it differently. No one would ever assume that they could trample or takahi on the kawa. Yet since 1840 the Crown has assumed that it can takahi our kawa, they have assumed the right to chop off our tikanga. In recent times there have been many efforts made to encourage our people to allow tikanga to become part of the law which has been brought here since

12 Tutu means to play around with.

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1840. I have some very real concerns about that. We are taking something that comes from our whakapapa and placing it in an environment that came from somewhere else, where it can be damaged, and we can be made unsafe.

The solution for me in the long term is quite simple really. If rangatiratanga is seen in the year 2003 as an authority in which our people can deliver Māori health programmes by Māori for Māori, then rangatiratanga must also one day include again the right of Māori to dispense justice in Māori terms by Māori and for Māori. That you cannot be a rangatira, you cannot be a sovereign people unless you have the ability to determine what is tika among your own people. That does not mean that when that Māori iwi, hapū justice process is reclaimed that it will be the same as it was two hundred years ago. Our people have changed. We didn’t have venetian blinds two hundred years ago. Any justice process to meet the needs of its people has to change. It wasn’t that long ago that Pākehā law in England tested whether a person was telling the truth by dipping their whole body in a vat of boiling oil and if they survived they were deemed to be telling the truth. Pākehā law doesn’t do that anymore. Whatever justice processes we end up with, will also not do things in the way that we may have done them two hundred years ago. But what will not have changed is that wellspring from which the tikanga came. Those values will determine the changing world of ‘what is tikanga’. While, like Ani, I applaud and am happy to offer whatever tautoko I can to the Māori staff here at Waikato Law School, I also encourage our people to debate what may happen one day when we are able to reclaim that justice process which comes from our tikanga to debate what it might look like, how it would function, how the people will have to be trained to operate within it, or the broader changes that would need to take place within our world to operate effectively. In 1988 I was involved in writing the report called ‘The Māori and the Criminal Justice System, A New Perspective: He Whaipaanga Hou’. The last sentence of that report said:

... the need to begin a debate about a Māori justice system is immediate the

long term development will take time.

Fifteen years later it is extremely important that we continue the debate among ourselves, to discuss, to tease out ideas about how it would work in the 21^st century. I have confidence in the depth and wisdom of our people to do that. Although times have changed, there are certain unchanging values that are still with us. Sometimes we may be unsure about what they are, we may be uncertain about standing firm about them, but they make us who we are. To me they would be a fundamental part of any reform. If we are to progress something like the foreshore and seabed then it seems to be the answers are quite simple really, they lie within that process, that tikanga which was left us by our tūpuna.