New Zealand Yearbook of New Zealand Jurisprudence
Last Updated: 25 April 2015
Creating Our Own Prosperity – Human Rights from a Tainui Perspective
Linda Te Aho*
Central to this paper is the prophetic saying of Tāwhiao, the second Māori
King, that describes a future dream of prosperity for his people.
If one is to provide a Tainui perspective,1 it is necessary to set the scene by outlining, albeit briefly, an explanation of the Kīngitanga, the King Movement. The Kīngitanga began in the 18 0s, some years after the arrival of Europeans, and largely as a unified response by a number of tribes to the upsurge of unauthorised land sales.2 It was also designed to bring an end to intertribal warfare, and to achieve mana motuhake, or separate authority.3
While the movement enjoyed the support of many tribes, it became centred in the Waikato region in the central North Island. Tribes from all over the country, including the South Island, had debated who should be offered the kingship, and those debates resulted in the reluctant agreement of Waikato chief,4 Pōtatau Te Wherowhero, who was raised up as king in 18 8. Pōtatau was soon succeeded by his son, Tāwhiao and it was during Tāwhiao’s term as King that the settler Government, seeing the Kīngitanga as a threat to its stability, sent its forces across the Mangatawhiri River in July 1863, labeling the Waikato people as rebels and subsequently confiscating Waikato lands and driving people away from their villages alongside their ancestral river.5
Tāwhiao’s people were embattled, weak and destitute, when he
Mākū anō hei hanga i tōku nei whare,
Ko ngā pou o roto he māhoe, he patatē, ko te tāhuhu he hīnau. Ngā tamariki o roto me whakatupu ki te hua o te rengarenga, me whakapakari ki te hua o te kawariki
* Linda Te Aho is of Ngāti Korokī Kahukura descent and is Associate Dean Māori and Senior
Lecturer in Law at the University of Waikato Law School.
1 Tainui is the name of the waka (canoe) that travelled to Aotearoa from Hawaiki. Some of the tribal confederations that affiliate to the Tainui waka include Waikato, Maniapoto, Raukawa, and Hauraki.
2 See Michael King The Penguin History of New Zealand (2003) chapter 1 , and see <http://
www.teara.govt.nz> for historical accounts of the King Movement.
3 David McCan Whatiwhatihoe The Waikato Raupatu Claim (2000) 32.
4 Waikato is a tribe based in the central North Island that shares its name with its ancestral river.
5 By Orders in council under the New Zealand Settlements Act 1893, the Crown unjustly
confiscated approximately 1.2 million acres of land from Tainui
Yearbook of New Zealand Jurisprudence
I shall fashion my own house,
The poles within will be made of mahoe and patatē,
and the ridge pole made of hīnau.
The children within will be raised on the fruit of the rengarenga
and strengthened on the fruit of the kawariki
Tāwhiao is remembered for such visionary prophecies and this particular
saying expresses leadership, responsibility and resourcefulness.
specific trees that Tāwhiao would use to fashion his ‘house’
were not traditionally used to build houses.
The two plants referred to were not
commonly used as food. One could gather from this that regardless of the humble
to him, Tāwhiao assumed responsibility for providing
shelter and sustenance for his house of followers.6
So much lies within these few lines: they prophesy the regeneration of a
people who would be strong and stable and have a sustainable
economic base. They
celebrate our strength, self-sufficiency and our indigeneity.7 They
serve as a constant reminder that we, as Māori, must affirm and draw upon
our own unique knowledge base, leadership practices,
and resourcefulness, to
bring about our own future prosperity.8
I wanted to contribute to today’s conversation by sharing with you some
of the symbols of the people of this place. These symbols
of the Kīngitanga
illustrate how my people of Tainui have borrowed aspects from the
Pākehā world, but remain grounded
deeply and firmly in tribal
sovereignty and mana motuhake.
I want to also share some of the discussion that has taken place during
seminars and symposia that the Waikato Law School has been
involved in or hosted
this year – to highlight that Māori have been engaging in discussions
about rangatiratanga, te Tiriti
o Waitangi, mana motuhake all year, and for many
years, amongst ourselves and with other indigenous peoples, for it is our lives
that we are talking about.
Finally I want to highlight some present day examples of how Māori are
indeed redesigning and rebuilding our houses – and
I consider how human
rights concepts and legislation might contribute to that
6 Pania Papa and Linda Te Aho (Eds) He Kete Waiata A Basket of Songs (2004) 76.
7 Te Kīngitanga The People of the Māori King Movement (1996) 60.
8 Amohaere Houkamau – Presentation to Waikato University Māori Land Law Class, August
2006 ‘Perspectives of Governance and Leadership (Past, Present and Future)’.
2007 Creating Our Own Prosperity
i. The DeclaraTion of inDePenDence, Te TiriTi o WaiTangi,
Tangata whenua systems of law and government existed in this country prior to
colonisation by the British. Māori society was
collectively organised with
whakapapa (genealogy) forming the backbone of a framework of kin-based descent
groups9 led by rangatira – leaders for their ability to weave
people together. Māori societies developed tikanga Māori, the
law of Aotearoa/ New Zealand by which Māori governed
Exploratory expeditions by the British and French to this country from 1769
and the establishment of a British colony in nearby Australia,
culminated in Te
Tiriti o Waitangi, signed between many Māori hapū and the British
Crown in 1840 – a time when Māori
constituted 98 per cent of the
population and the Māori language was the dominant language. Five years
earlier Māori chiefs
had signed a declaration of independence.
The theme of these Human Rights Commission symposia has been the relationship between the Treaty and human rights legislation. Our Ariki, Pōtatau Te Wherowhero, did not sign the Treaty despite having had opportunities in which to do so.11 He did however sign the Declaration of Independence in
1839 (four years after the Northern chiefs had signed in 1835) declaring all
sovereign power and authority within the territories
of the united tribes of New
Zealand to reside entirely and exclusively in the hereditary chiefs and heads of
There has been much debate about what the Treaty means, its effect, and its
legal status. I do not attempt to traverse the various
arguments in this paper,
but I quite like Mason Durie’s description that the Treaty embodies the
concept of mutual benefit.
Waikato’s relationship with the Crown has
always reflected a desire to preserve tribal authority and land, but also, at
initially, a willingness to welcome and work with the British.
9 These descent groups consisted of three major social institutions: whānau (immediate and extended family); hapū (sub-tribes being collections of whānau descended from a common ancestor); and iwi (tribes being confederations of hapū).
10 Since these symposia were held, Ani Mikaere has published, A ‘The Treaty of Waitangi and Recognition of Tikanga Māori’ in Waitangi Revisited - Perspectives on the Treaty of Waitangi (Oxford University Press, 2005) 330, 341-342 in which Mikaere argues that tikanga is the first law of Aotearoa/New Zealand. Tikanga were sourced from spiritual beliefs, ancestral precedents and a profound relationship with the natural environment traceable to the creation stories. Tikanga embodied the values, standards, principles or norms developed by Māori societies to govern themselves.
11 It is said that some chiefs affiliated to Tainui waka signed an English Version of the Treaty
at Manukau heads.
46 Yearbook of New Zealand Jurisprudence
Though Pōtatau Te Wherowhero did not sign the Treaty, it seems to have
superseded the Declaration of Independence, and references
to the Treaty in our
songs and in our history indicate that our chiefly leaders saw it as a reason
for trusting the early Settler
Government (though as noted earlier, this trust
was misplaced).12 Generations of our leaders have, in a number of
ways, sought to have the Treaty honoured.
The Waikato Raupatu Claims Settlement Act 199 incorporates an apology by
the Crown to Waikato for the Crown’s breach of the
Treaty of Waitangi in
its dealings with the Kīngitanga and Waikato. The settlement that ensued
following direct negotiation
is said by some to represent approximately 2 per
cent of the value of lands confiscated. Any more would have been unacceptable to
non-Māori, and the Government’s imposition of an unofficial fiscal
cap upon Treaty settlements in nation’s best
interests overrode the
entitlements of tangata whenua.
If the Treaty symbolises mutual benefit, our iwi has contributed to the
region’s development in terms of the land and waterways
upon and through
which that development has taken place.
ii. SymbolS of the Kīngitanga – te PaKi o matariKi – a coaT of arms ProPhesising Peace anD calm anD asserTing mana moTuhake
According to Comanche leader LaDonna Harris, her ancestors in the 16th
Century saw the Spanish horses appear on their Southern Plains and decided
that the horse could transport their goods better than
Similarly, the people of the Waikato have adopted traditions from other
cultures whilst holding fast to concepts of tribal sovereignty.
Movement itself, for example, is fashioned upon the English monarchy. King
Tāwhiao also imagined that his ambitions
for his people could be reflected
in a coat of arms and he commissioned one in 1870. It is known as Te Paki o
Matariki – the widespread calm of the constellation, Pleiades. The
Matariki constellation rises just after the mid-winter solstice –
when Māori celebrate the dawning of the New Year and the coming of fine
weather. In the context of the land wars and
the confiscation that occurred
during Tāwhiao’s reign, by naming his coat of arms Te Paki o
Matariki, he prophesied that peace and calm would
12 By Orders in council under the New Zealand Settlements Act 1893, the Crown unjustly
confiscated approximately 1.2 million acres of land from Tainui iwi.
13 LaDonna Harris ‘Advancement of Global Indigeneity’ International Indigenous Journal of Entrepreneurship, Advancement, Strategy and Education Vo1, Issue 1, Special Edition
‘WiPCE World Indigenous Peoples’ Conference on Education’,
Hamilton, New Zealand, November 2005.
2007 Creating Our Own Prosperity
return to Waikato and Aotearoa/New Zealand. Nowadays, the celebrations of the
Māori New Year surrounding the rising of Matariki
symbolise the renaissance of Māori concepts of time, it also symbolises
hope, for even in the darkness of midwinter,
Matariki will still rise.
Te Paki o Matariki also reflects the dominant role of Christianity, which has
been incorporated into our culture.
There are many significant features of the coat of arms such as, for example,
the presence of native plants, nīikau and harakeke,
sufficiency, and of course, the inscription of words at the bottom – Ko
Te Mana Motuhake.14
These symbols of the Kīngitanga demonstrate how my people have adopted
and adapted aspects from the Pākehā world whilst
holding fast to
concepts of tribal sovereignty and mana motuhake. I suggest that we can look
towards human rights legislation in
a similar way to complement our own
14 See Tawhiao, King or Prophet (2000) 110, image reproduced with
48 Yearbook of New Zealand Jurisprudence
iii. an ongoing conversaTion
As I noted earlier, I saw this symposium as an opportunity to share some of
the discussion that has taken place during seminars and
symposia that our Law
School has been involved in or hosted this year to show how Māori have been
engaging in discussions about
rangatiratanga, Te Tiriti o Waitangi, mana
motuhake and so on throughout this year.
This year, Te Piringa hosted an inaugural symposium entitled ‘Tikanga Māori
– Māori Laws and Values.15 At that hui,
Tainui elders reminded us that this University and this Law School talk an awful
lot about being bicultural, and about
partnership under the Treaty of Waitangi.
We were also reminded that these principles require closer and more regular
with the tangata whenua in whose rohe we sit.
Interestingly, in discussing the role of women, our ruruhi, Iti Rawiri
reminded us that women are sacred and to be cherished because
we bring life into
this world. Aunty Iti’s reminder should not be interpreted to mean
In the second session, Ani Mikaere articulated the view that tikanga
Māori is the first law of this country that should prevail
While we enjoyed Moana Jackson stories of tikanga of venetian blinds, and
Spanish Navigators who got lost17 (you had to be there), he reminded
us to think more carefully about the whakapapa18 of words, how they
are interpreted and who gets to do the interpreting. He reminded me of the words
of Patricia Monture-Angus, a Mohawk
In searching for meaning and for language that expresses our experience, we
must be careful of the words we choose to embrace our
experience. What is also
important to understand is that it is not the word that is the problem, but the
process by which and by
whom it is given
15 See Part One of this edition for a collation of proceedings from that conference.
16 See Part One, ‘Tikanga as the First Law of Aotearoa’. While tikanga varied from iwi to iwi, Ani explained that Māori Law consisted of a set of underlying values such as whanaungatanga, aroha, mana, manaakitanga, many of which are common to most iwi.
17 See Part One, ‘It’s Quite Simple Really’.
19 Patricia Monture-Angus Thunder in my Soul ‘Reflecting on
Flint Woman’ (199 ) p 39.
2007 Creating Our Own Prosperity
And so, we must think carefully about whether we choose to adopt the language
of human rights, or minority rights, or customary rights,
or rangatiratanga, and
sometimes it does not really matter what language we choose if we do not
participate in its interpretation.
On a related point, I recall the visit by International Law Scholar Benedict
Kingsbury who explained his thesis regarding competing
conceptual approaches to
indigenous group issues in New Zealand Law. He argued that these competing
approaches have no systematic
prioritisation, that they act as checks and
balances for each other.20 Yet, in my heart I feel that Māori
interests have been lost in the balance.
I can still visualize the anger of aboriginal academic Dr Aileen Moreton-
Robinson during a plenary session at the Australasian Law
conference in Brisbane this year.21 Aileen told us about a recent
Australian High Court decision that dismissed the long standing claim of the
people of the Yorta Yorta
aboriginal community on the basis that they had not
kept traditional links to the land, when the reason for them not maintaining
those links was that they had been driven off the land by settlers. Aileen saw
that as yet another example of how Australian courts
have repeatedly validated
and legitimised white property rights over native title – which is
different and less, because in
her words people who cannot have their title
extinguished make decisions about native title which can be extinguished if it
with anyone else’s. Indigenous peoples, then, are peoples who
hold tradition but not proprietory rights.
During that same session, Professor Larissa Behrednt, another aboriginal
academic, welcomed the idea of a framework based on a spectrum
spanning from civil and political rights (such as the right not to be
discriminated against – which rights are theoretically
clearly not in reality) to indigenous rights to culture and language.22
She told us of her expectation that as people learned more about the
history of their country and her people, they would become more
the so-called special rights that Aboriginals claim based on prior occupation.
Her expectations had been shattered.
The Yorta Yorta decision
demonstrated that Australia has not only failed to progress, but has regressed.
Yet for all that, Larissa Behrendt
20 Benedict Kingsbury ‘Competing Conceptual Approaches to Indigenous Group Issues in
New Zealand Law’ (2002) 52 UTLJ 101.
21 Dr Aileen Moreton, ‘Race Matters: Whiteness, Law and National Identity’ 2003 ALTA Conference, Griffith University, Queensland, Australia. See also the case, Members of the Yorta Yorta Aboriginal Community v Victoria  HCA 58; (2002) 214 CLR 422.
22 Professor Larissa Behrendt ‘Advancing Indigenous Rights in the Era of Practical
Reconciliation’ 2003 ALTA Conference, Griffith University, Queensland, Australia.
50 Yearbook of New Zealand Jurisprudence
remained optimistic believing that the endpoint was not the right or the
legislation, but the hope of a shift in societal attitudes
from what she termed
entrenched psychological terra nullius. She spoke with optimism and
More recently, the Waikato Law School hosted a seminar series Resource
Ownership and Access – Where to From Here? The series explored, among
other things, the recent government policy which refuses to discuss ownership of
natural resources in the
context of Treaty negotiations. We have also hosted a
series of discussions on the Foreshore and Seabed debate. On these issues,
colleague, Craig Coxhead, did not talk with optimism and hope, instead calling
for Māori to be resilient in the face of every
influence to take our rights
I congratulate the Human Rights Commission for instigating this series of symposia. It is important to talk and share experiences. These snippets from this on-going conversation that the Law School has been involved in this year highlight that these tensions are not new, and are not confined to Aotearoa/New Zealand. They have also provided timely and valuable reminders for Māori
– to be careful, to be resilient, to be optimistic and to have
On that note, I now turn my third and final point. I want to highlight some
present day examples of how Māori are indeed redesigning
and rebuilding the
setting in which we live – and I briefly consider the question of how
Human Rights legislation can contribute
to that process.
iv. reDesigning our house
Māori are engaged in the process of redesigning the setting in which we
live. Some are in the construction phase. Those who are
progressing have had a
clear vision and have shown strength in facing the inevitable barriers –
nothing that we have ever achieved
as a people has come easily.
As we watch the World Cup Rugby games, we no longer hear the furore that accompanied an earlier campaign about the singing of the national anthem. International recording artist Hinewehi Mohi faced insults from across the country for singing the anthem in the Māori language. Nowadays there are no media opinion polls on whether the anthem should be sung in English only
– or in both languages. In fact Hinewehi is in the news these days for
her efforts in establishing a music therapy centre that
might benefit those like
her own daughter who has severe cerebral palsy. Quite simply, Hinewehi has a
vision for our language, she
doesn’t want the language to die, she
celebrates her uniqueness, her two albums are recorded only in Māori, she
and society’s attitudes seem to have changed, at least on
2007 Creating Our Own Prosperity
Back home, in Waikato-Tainui,23 we continue our attempts to
redesign our own decision-making processes, we struggle internally to navigate
these tensions between
individual rights, and notions of democracy and tribal
leadership. But there are better ways for us to resolve our internal disputes
than buying into the adversarial court processes that are not our own –
some of the Pākehā tools are not so good
for us, so we need to be more
careful about which ones we choose.24 An example of a better way can
be found in the context of the awakening of the Māori economy. The
Ngātahi Trust consists
of a voluntary merging together of some 21 lands
trusts and incorporations. There is strength in numbers. The Trust has adopted a
philosophy of mai te iti ki te rahi; of being inclusive of the small and
the big; and that he rahi kē atu te kaupapa i a tātou, the aims
of the trust are bigger than the individuals and as the group. On the basis of
this value system, since its establishment
there has not been a need to vote,
all decisions have been made by consensus.
V. how might human rightS legiSlation aSSiSt māori to ProSPer?
I have argued elsewhere that rights mechanisms such as Equal Employment
Opportunities and measures to ensure equality can, if interpreted
in a certain
way, complement aspects of tikanga Māori and might serve as useful tools to
assist Māori to prosper.25 The merit principle for example,
assumes that most able and deserving individuals will progress in terms of
of ethnicity and gender. It is grounded on the liberal
philosophy that all individuals are born equal but it assumes that if they
don’t progress it is because they lack merit, and does not take into
account past discrimination which may have precluded certain
acquiring training and education, while at the same time not recognising certain
skills as amounting to merit. Anti discrimination
measures may help remove
formal barriers against selection and promotion are based on the merit
principle. But to be effective, I
have argued that they must be accompanied by
affirmative action, which raises opposition from those that condemn reverse
23 The raupatu settlement referred to in Part One above centred around Waikato but affected all of the tribal groups that affiliate to Tainui. The governance structure that facilitated the raupatu settlement, the Tainui Trust Board, contained representatives mainly from Waikato, but was also representative of certain hapū from other Tainui iwi who are named beneficiaries of the Waikato Raupatu Lands Trust – hence the reference to Waikato-Tainui.
24 Porima v Te Kauhanganui o Waikato (22 September 2000), Hamilton M208/00 HC; Waikato; Porima v Waikato Raupatu Trustee Company (20 February 2001) Auckland M327/00 and M330/00.
25 Linda Te Aho, ‘EEO for Māori Women in Māori Organisations’ (2001) 9 Waikato Law
52 Yearbook of New Zealand Jurisprudence
Surely, it is in the best interests of the whole country for Māori to
prosper and for Māori to be spiritually fulfilled.
Māori want to
participate and progress as Māori, and sometimes our desire for tribal
sovereignty and collectivity are seen
as directly contrary to human rights
concepts of democracy and the rights of individuals. Sometimes our claims for
redress for past
breaches of the Treaty are seen as seeking special rights which
are contrary to notions of equality. In situations of tension, that
not favoured Māori.
I want to end with the words of Te Arikinui26 which illustrate
that we too celebrate the unique talents of the individual. Te Arikinui’s
words are entirely consistent with
human rights notions of individuals having
the opportunities to reach their full potential:
...Tukua au akoranga kia pūpū ake i roto, whakamahia katoatia ngā taonga kei roto i a koe.
...Draw from all that you have within you. In doing so we as a nation will experience as promised prosperity and spiritual fulfilment.
26 Post Script: Sadly, Te Arikinui, Dame Te Atairangikaahu, who during her reign as Māori Queen headed the Kīngitanga, passed away on 1 August 2006. Her passing is a defining moment in the history of this country and the writer echoes the farewell to Te Arikinui which features at the forefront of this edition.