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Te Aho, Linda --- "Creating our own prosperity - human rights from a Tainui perspective" [2007] NZYbkNZJur 7; (2007) 10 Yearbook of New Zealand Jurisprudence 43

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 declared:

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 iwi.

Tāwhiao is remembered for such visionary prophecies and this particular saying expresses leadership, responsibility and resourcefulness. The three 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 resources available 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 process.

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 45

i. The DeclaraTion of inDePenDence, Te TiriTi o WaiTangi,

and Kīngitanga

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 first law of Aotearoa/ New Zealand by which Māori governed themselves.¹⁰

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 tribes.

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 least 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.

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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 16^th Century saw the Spanish horses appear on their Southern Plains and decided that the horse could transport their goods better than the dog.¹³ Similarly, the people of the Waikato have adopted traditions from other cultures whilst holding fast to concepts of tribal sovereignty. The King 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 – the time 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 47

return to Waikato and Aotearoa/New Zealand. Nowadays, the celebrations of the Māori New Year surrounding the rising of Matariki during midwinter 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, representing self- 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 tikanga.

14 See Tawhiao, King or Prophet (2000) 110, image reproduced with permission.

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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 collaboration 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 anything else.

In the second session, Ani Mikaere articulated the view that tikanga Māori is the first law of this country that should prevail over introduced British law.¹⁶

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 writer:

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 meaning.¹⁹

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’.

18 Genealogy.

19 Patricia Monture-Angus Thunder in my Soul ‘Reflecting on Flint Woman’ (199 ) p 39.

2007 Creating Our Own Prosperity 49

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 Teachers’ 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 conflicts 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 of rights spanning from civil and political rights (such as the right not to be discriminated against – which rights are theoretically protected but 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 tolerant towards 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 [2002] 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.

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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 hope.

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, my 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 away.

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 hope.

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 was resilient, and society’s attitudes seem to have changed, at least on that point.

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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 employment regardless 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 groups from 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 discrimination.

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

Review 187.

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vi. conclusion

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 balance has 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.