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New Zealand Yearbook of New Zealand Jurisprudence |
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’.
ii Yearbook of New Zealand Jurisprudence
Vol 10
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 6th 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
.
iv Yearbook of New Zealand Jurisprudence
Vol 10
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
vi Yearbook of New Zealand Jurisprudence
Vol 10
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
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