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University of Otago Law Theses and Dissertations |
Last Updated: 25 September 2023
EXCAVATING HEALTHY FUTURES FROM AN UNHEALTHY PAST: A NECROPOLITICAL ANALYSIS OF NEW ZEALAND LAW AND
MĀORI HEALTH
Jessie Hansen
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo
October 2022
Contents
INTRODUCTION
In a recent review of the Hawke’s Bay DHB’s provision of maternity service, several staff provided witness accounts of medical staff using their power to refuse care. One such example alleged that a man suffering a respiratory attack was refused service by triage nurses in the Hawke’s Bay emergency department because he said:1
"‘I can't f...king breathe. I can't f...king breathe.’ And they said, ‘Hey, watch your language.’ And he said, ‘Get me some f...king oxygen.’ And they said, ‘Look, read that sign we will not serve anyone that swears - respect our space... . In the end the triage nurse came out and said, ‘We're not going to serve you, you need to go.’... He did come back, 6 hours later - dead.”
The principle of “save the life first – then talk later” was abandoned in this case, as another staff member suggested, because when “it’s a Māori who doesn’t look flash – they get judged straight away and the power is used to exert authority over them.”2 Such decisions leading to unnecessary Māori deaths are made every day – not only by clinical staff but by parliamentarians, policy writers, judges, and government agencies. While they rarely happen to such an obviously fatal extent, Achille Mbembe’s Necropolitics would argue that the chain of causation remains, owing to the way in which racial minorities are inscribed in the modern global order of ‘power’.
Living as we do beneath the spectre of COVID-19, we might agree with Mark Howard in saying that “[p]roximal death is revelatory in a way that distant death – death separated from us by time or space – can rarely be”.3 While Māori have, since colonization, existed closer to their death than their non-Māori counterparts (by, on average, 7 years)4, the pandemic has made death much more visible to us all, and with it, the politics of human expendability. Achille Mbembe’s Necropolitics offers a theoretical framework for such politics: drawing on Foucault’s conception of biopower, Mbembe identifies racism as a prime driver for regulating the state’s “distribution of death” amongst its populace.5 This dissertation seeks to examine the ways in which racism allows the Crown and its agents to make deadly decisions for our tangata whenua through our social and legal institutions, and canvas the possibilities (and limits) of state law as a vehicle for change. This dissertation will be split into five substantive sections, as follows:
1 Hawke’s Bay District Health Board Hau te Kura: Nurturing our Treasures (23 February 2022) at 67 – 68.
2 1 at 68.
3 Mark Howard “The Necropolice Economy: Mapping Biopolitical Priorities and Human Expendability in the Time of COVID-19” 2022 Societies 12 (1) 2 at 2.
4 Statistics New Zealand, National and subnational period life tables: 2017–2019 (Statistics New Zealand, April 2021). The same gap was recorded in Ministry of Health Health and Independence Report 2013 (Ministry of Health, 2013) at 154.
5 Achille Mbembe Necropolitics (Duke University Press, Durham, NC, 2019) at 71.
I. NECROPOLITICS
Joseph-Achille Mbembe, a Cameroonian historian and political theorist, sought to add another focal point to Foucault’s analysis of biopower, and his conclusion that modern legal sovereignty entails the power to “make live and let die”.6 In Mbembe’s Necropolitics, the sovereign power is not only obliged to ‘let’ certain classes of people die, but indeed to expose people – not least their own citizens – to conditions so detrimental to health that they are at greater risk of death and certainly more likely to die early. Mbembe draws upon the logics of the slave plantation, the colony, South African apartheid, and the current ‘War on Terror’ to demonstrate how necropolitical forces expose racial minorities to “conditions that make life highly precarious.”7 ‘Necropolitics’ or ‘necropower’ then account for the ways in which the modern state creates:8
“death-worlds, that is, new and unique forms of social existence in which vast populations are subjected to living conditions that confer upon them the status of the living dead.” [Emphasis in original.]
The spirit of our times, it is said, is about “closure and demarcations of all sorts”.9 Mbembe expounds on how this Western habituation to binary thinking engenders an us vs. them dichotomy, and also reinscribes the ideological divides manifest in borders, fences, and the invisible perimeter of state law. The problem of the colony as a political site – the same problem of the slave plantation, the concentration camp, and the modern border – is that it stems from an assumption that this separation of self and other is essential, and thus crucial to the political and physical survival of the state.As Mbembe explicates, “[d]emocracy, the plantation, and the colonial empire are objectively all part of the same historical matrix”.10 While democracy is viewed by many as a more noble descendant of colonialism, something which actually works to rectify past wrongs by installing a society of equality through (supposedly) equal participation, Necropolitics argues that this is an ideological mystification whose concealment is absolutely crucial to the continued imposition of our global order. Modern democracies do not truly abrogate their violent history,
6 Michel Foucault ‘Society Must Be Defended’: Lectures at the College de France, 1975–76 (David Macey (translator), Picador, New York, 2003).
7 Tony Sandset “The necropolitics of COVID-19: Race, class and slow death in an ongoing pandemic” 2021 Global Public Health 16 (8-9) 1411 at 1413.
8 3 at 92.
9 5 at 9.
10 5 at 23.
but conceal it, since they have “always evinced their tolerance for a certain political violence, including illegal forms of it.”11Utilitarianism, the founding philosophy of democracy, posits that what is good for the most amount of people is, ultimately, the greatest good. So democratically constructed governments derive their legitimacy from a ‘majority vote’ – a majority which can only ever exist if a minority is there and ready to sacrifice their interests. Liberal democracy thus depends on the repulsive flavour of the us/them, self/other, I/not-I demarcations present in our social and political lives, and has always been “fully compatible” with racism, since it has “always needed a constitutive Other for its legitimation, an Other who is and is not at the same time part of the polis.”12 This separation in some circumstances becomes a real life/death situation, which the state is bound by virtue of its sovereign office to deploy: the Other must die so I can live.
This us/them division has a peculiar resonance in colony states which, naturally, pursued assimilative policies. It was not acceptable for the colonised to remain who they were, and while it was never quite believable when they became more like their colonisers, it was also not acceptable if they never made any strides to do so. Belonging to the nation state in the modern era then has become not just “an affair of origin but also of choice”13. What seems to come up throughout history, and now, with our COVID-responses, is that we can be saved by our state, at least from proximal death, if we can obey it, accept its wisdoms and discourses, and prove ourselves to be otherwise valuable.
Because the modern liberal democracy relies on this essential separation between ‘us’ and ‘them’, it tends to do two things. Firstly, it creates fissures, or borders of separation, between those who are ‘valuable’ and those who are ‘expendable’. Mbembe notes that the colony “served as a pressure relief valve for all the undesirables”, and that this “scission of humanity into ‘useful’ and ‘useless’ – ‘excess’ and ‘superfluidity’ – has remained the rule.” 14 In creating these divisions, the state deigns to define who is valuable and ought to be saved, and on the flipside, who is devalued, and might be left to die. This separation also tends to create two orders of people, or, as my dissertation suggests, two types of legal citizenship, that might exist beneath the state. There is the “community of fellow creatures” governed by the “law of equality” – those who usually outnumber the rest, and thus constitute the democratic majority
11 5 at 16–17.
12 5 at 162.
13 5 at 13.
14 5 at 11–12.
with the power to shape the national interest. There is, on the flipside, a “category of nonfellows... that is also established by law... [who] are governed by the law of inequality.”15The lynchpin of Necropolitics then is that the ultimate expression of state sovereignty is the:
“power and capacity to dictate who is able to live and who must die. To kill or to let live thus constitutes sovereignty’s limits, its principle attributes.”16
The democratic state, which relies on the minority for its legitimation, and on sacrificing minority interests, has the power and obligation to protect the body of the nation. The dark underbelly of that power is that they can decide where the body ends and the Other begins; which lives are valuable, worth protecting, and which lives are not. In doing so, they create “nonplaces”, these spaces of exclusion at the borders of legal protection, which force minorities into living lives characterised by precarity.17 Māori, who have existed in fundamental opposition to the New Zealand state, are encouraged to inhabit these spaces by law. Especially important to my dissertation is considering the legal power of racial minorities, since the source of that power also indicates its fundamental limitation. The modern liberal democratic state excludes minority populations from substantive protection, bodily, legal, or otherwise, not merely by incidence but by its very design.
15 5 at 17.
16 5 at 66.
17 5 at 27.
II. MĀORI HEALTH
In this section I will be illuminating the relationship between racism and health in order to determine why Māori health has been suffering. That colonization can be blamed for most social ills Māori now suffer from may be trite, but explicating the Māori health situation specifically will demonstrate how colonization has introduced necropolitical forces into the fabric of New Zealand law and society. I will follow with an analysis of two necropolitical legal events which have occurred at two pivotal points in the timeline of Māori health, the Tohunga Suppression Act of 1907 and New Zealand’s COVID-19 response.
A. The relationship between racism and health
Racism, as a social condition, causes ill health and premature death. Williams and Mohammed extrapolate this relationship by substantiating patterns of globally racialized peoples who have worse overall health than their advantaged counterparts.18 Structural racism, they argue, reduces access to societal resources, including but obviously not limited to housing, education (or educational quality), and employment opportunity. Cultural racism impacts health also, by “creating a policy environment hostile to egalitarian policies” and triggering social stigmas that become pathogenic, resulting in damaging psychological responses (like ‘stereotype threat’ or internalized racism).19 Moreover, they point to evidence which suggests that experiencing racial discrimination can lead to and encourage behavioural or lifestyle patterns which increase health risks. Ruth Gilmore has apprehended the role of the state in this operation in much the same way that Necropolitics does by saying that:20
“Racism, specifically, is the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.”
Māori health, if not already in a full-blown “humanitarian crisis”,21 is at least in a very “poor state” – and has been for decades.22 Māori, like other Indigenous and colonized populations globally, are bearing a disproportionate burden of disease and are at every age “sicker, and die
18 David R Williams and Selina A Mohammed “Racism and Health I: Pathways and Scientific Evidence” (2013) American Behavioral Scientist 57 (8) 1152.
19 18 at 1152.
20 Ruth Gilmore Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California (2007) University of California Press: Los Angeles at 28.
21 Whanau Ora submission to the Inquiry into Māori Inequities in Health at 1.
22 William Hewett “Head of Māori Health Authority Riana Manuel says Māori health has been in 'poor state for decades' but stops short of saying it's in a crisis” Newshub (online ed, Auckland). Retrieved from: https://www.newshub.co.nz/home/new-zealand/2022/07/head-of-m-ori-health-authority-riana-manuel-says-m- ori-health-has-been-in-poor-state-for-decades-but-stops-short-of-saying-it-s-in-a-crisis.html
earlier” than their counterparts.23 The disproportionate sufferance of ill-health for Māori in New Zealand manifests itself broadly through historical trauma, high incidences of non- communicable diseases (NCD’s), ‘risky’ lifestyle activities (binge-drinking, smoking), higher rates of disability (paired with lower accessibility to appropriate services), and higher rates of personal injury. Māori are more likely to suicide24 or be victimized by interpersonal violence (especially Māori women), and have comparably more grievous occasions of self-harm.25 Leanne Te Karu, a pharmacist prescriber, has identified specific issues in the way we regulate and distribute medicine. Besides prescriptions being inaccessible in the first instance due to socioeconomic insufficiencies, Māori are also more likely to be prescribed inappropriately.26 Te Karu identifies NSAIDs (non-steroidal anti-inflammatory drugs) as a particular issue, since with extended usage they can cause comorbidities much worse than the disease they are prescribed to treat. Being prescribed for chronic diseases (like gout) which have a higher incidence amongst Māori and Pasifika populations, NSAIDs are dispensed to these populations at higher rates and creating clear ethnic disparities in hospitalizations for serious adverse outcomes: upper gastrointestinal bleeding, heart failure, acute kidney failure.While Māori are more likely to experience such inequitable health outcomes during treatment, they are also more likely to be either unwilling or unable to present for treatment in the first place. That Māori are not accessing primary health services in a timely manner is reflected in higher rates of ‘amenable mortality’ and ‘ambulatory sensitive hospitalizations’ (at 2.5 times and 1.5 times that of their non-Māori counterparts respectively).27 Māori are much more likely to have unmet health needs. Whether they are unable to get an appointment (or to pay for it), unable to access transport or childcare, are presenting late or failing to present at all, or experiencing an ineffective or insufficient medical intervention, what this boils down to is that Māori are dying avoidable deaths and bearing unnecessary suffering. Māori health suffers because institutional racism establishes, as Dr Heather Came puts it, a “pattern of differential
23 Odette Mazel “Indigenous Health and Human Rights: A Reflection on Law and Culture” (2018) Int J of Environmental Research and Public Health 15 (4) 789.
24 The same statistic is even more egregious in prison populations (which in themselves are represented disproportionately by Māori): see Robert Jones Suicide in New Zealand Prisons - 1 July 2010 to 30 June 2016 (Department of Corrections, November 2017).
25 Denise Wilson, Amohia Boulton and Isaac Warbrick, “Physical Wellbeing of Māori” in Christopher Fleming and Matthew Manning (eds) Routledge Handbook of Indigenous Wellbeing (Taylor & Francis Group, New York, 2019).
26 Leanne Te Karu “Restoration of the Health System Must Not Neglect Medicines – But Who Has the Power of Reform?” (2021) Journal of Primary Health Care 13(2) 96.
27 Ministry of Health Health and Independence Report (October 2015) at 36.
access to goods and services and power”, the denial of which is quite literally “costing people their lives.”28While Aotearoa’s legal and political history is pocked with examples of “well-meaning policies with the best intentions”,29 we still find that even where we give the Crown the benefit of the doubt and posit their efforts as truly benevolent (however short-sighted) and not merely tokenistic, the Crown is failing at the end of the day to overturn these trends for Māori. This dissertation, through a necropolitical analysis of New Zealand law, will hopefully begin to apprehend why that is.
B. A history of Māori health: a ‘dying race’
As with any other issue specific to Māori, the poor state of Māori health can be traced through our colonial history. European settlement incited a sharp decline in Māori populations, which historian Raeburn Lange attributes to a wide range of factors.30 Unprecedented diseases, combined with communal living, devastated communities to such an extent that Pākehā sought to abolish hui and tangihanga, since they “impoverished the hosts” and “fostered immorality”.31 Proliferation of European crops led to a more carbohydrate-biased diet, providing little immunity, while traditional Māori clothing and housing did little to protect the body from the elements. Given that the settler state flourished at the same time Māori populations languished, the rational and scientific conclusion of the settler state was that Māori health must be suffering because of their inferior ‘way of life’, and that “[i]mprovements in Māori health would derive naturally from the Europeanisation of Māori society”.32 Linda Bryder has found that, during the later tuberculosis epidemic, public health initiatives were still grounded in such ethnocentric ideologies.33 A Christchurch newspaper at the time cited a practising doctor who believed that:34
28 Aaron Smale “Sick to Death” Radio New Zealand (online ed, Auckland, 12 August 2019).
29 Bridgette Masters-Awatere “A Game of Slides and Ladders: Māori Health Providers and Funders” in Shiloh Groot, Clifford van Ommen, Bridgette Master-Awatere and Natasha Tassell-Matamua (eds.) Precarity: Uncertain, Insecure and Unequal Lives in Aotearoa New Zealand (Massey University Press, Auckland, 2017) 147 at 159.
30 Raeburn Lange May the People Live: A History of Māori Health Development 1900–1920 (Auckland University Press, Auckland, 1999).
31 30 at 27.
32 30 at 64.
33 Linda Bryder “If Preventable, Why Not Prevented? The New Zealand Response to Tuberculosis 1901–1930” in A Healthy Country: Essays on the Social History of Medicine in New Zealand (Bridget Williams Books, Wellington, 1991).
34 “Tuberculosis Control” Press (Christchurch, New Zealand, 21 June 1949) at 6. Cited in 33 at 124.
Māori people, with their communal type of life, lack what seems to Europeans an adequate sense of hygiene, and responsibility in health matters. The remedy is largely a question of education.
At the turn of the 19th century, the pervasive belief was that Māori were a ‘dying race’. Te Rangi Hiroa surveyed this phenomenon in 1924, citing Doctor Newman who in 1881 regarded the decline as “scarcely subject for much regret” since Māori were evidently being supplanted by a “superior race”.35 When various prophecies that Māori would die out after a couple decades failed to be realised, the colonial state was mobilised to do something about it. By this time, there were Māori men in parliament, and wide calls for something to be done about the calamitous state of Māori health. Moreover, the colonial state seemed to recognize the power that ‘saving’ the Māori could have in valorising and legitimising their statehood and sovereignty. In a public lecture, Robert Stout said that if the race were not ‘saved’ by government efforts and referral to the superior Western medical institution, the state would be handing down “a legacy of shame to future generations.”36 In this way, Lange argues, colonial science and western medicine was used as a “tool of empire”37 – one of the first necropolitical developments owed to the burgeoning New Zealand state, who for the first time took state sovereignty to its excess by declaring its power to save life and their intention to use it. Though of course, the death of the Māori race was seen by some as a foregone conclusion. Māori were declining so quickly and with such vigour that extinction seemed inevitable, and some colonists chose instead to console themselves with the idea that even if palliative care were all they could provide, “humanity and sound policy” demanded they do their “utmost to retard the event”38.Getting Māori the treatment they needed, whether rehabilitative or merely palliative, was another issue altogether. Our present issues of accessibility were also present in the 19th century, since inevitably this was where they started: there were fewer hospitals in Māori residential areas, and many hospital boards refused to admit Māori patients knowing that they were likely going to refuse or be unable to pay their fees. There were also communicative and cultural barriers. Since there were no Māori ‘doctors’ as of the 19th century, medical consultation permitted only superficial discussion of sickness and its treatment, and the persistent perception of Pākehā medicine as “alien”, part of a “strange Pakeha world” which
35 Peter H Buck (Te Rangi Hiroa) “The Passing of the Māori” 1924 Transactions and Proceedings of the Royal Society 55 362 at 362.
36 “The Future of the Māori Race” Evening Post, 12 Oct 1900, 5.
37 30 at 59.
38 SI Featherston, Wellington Provincial Council, Journal of Proceedings, 1855, 6.
failed to comprehend the spiritual, often meant Māori either abandoned treatment altogether or looked to tohunga.39 There was no way to know what went on behind hospital walls, so it was easy to imagine loved ones being “dissected to satisfy the curiosity of the inquisitive white man.”40 This cultural dissension, or, as the Waitangi Tribunal phrases it, this “contest between Māori holism and the Western severance of science and spirituality”, led to two things.41 Ideologically, it led to a forceful assertion by the colonial New Zealand state of the success and rightness of Western health paradigms; legally, it resulted in the Tohunga Suppression Act of 1907.
39 30 at 37.
40 Peter H Buck “Medicine Amongst the Māoris in Ancient and Modern Times” (MD Thesis, University of Otago, 1910) at 107.
41 Waitangi Tribunal Ko Aotearoa Tenei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011) vol 2 601–657 at [7.2].
III. NECROPOLITICAL ARTIFACTS IN NEW ZEALAND LAW
A. Tohunga Suppression Act 1907
The Tohunga Suppression Act 1907 was passed because tohunga, perceived by Māori and Pakeha alike as a “menace to the Māori community”, evidently needed suppressing .42 While tohunga had been a necessity pre-contact, the colonial government which had by now seized a large part of New Zealand’s resources meant that the Māori health budget allocated for around 46,000 Māori was, in 1907, around 3,000 pounds. According to the Reserve Bank of New Zealand’s inflation calculator, 3,000 pounds would equate today to the buying power of around NZD $570,500 – or NZD $12 per Māori citizen.43Surveying a breadth of New Zealand historians, Māmāri Stephens argues that this lack of facilities was at least in part what “necessitated the use of tohunga untrained in Western medicines”, who often resorted to dangerous methods.44 There were, for example, many deaths owing to tohunga dousing fever patients in cold water, who eventually perished from overexposure. Regardless of how important tohunga were for the spiritual and religious health of the community, nor the importance of their role as “guardian and expositor of tapu”, through which all “natural, social and personal phenomena” could be comprehended,45 enabling such backwards and potentially fatal methods was thought to cause more harm than good. In light of these techniques and many deaths of Māori children, Dr Maui Pomare (then Māori Health Officer) was among the first to push for legislation against ‘tohungaism’.46 Though Māori practitioners were by no means unadvanced in their medical knowledge, their consistent deference to the unseen spiritual realm and intangible disturbances of the tapu/noa equilibrium as the cause for unexplainable illnesses was, to the rational and secular Western practitioner, a vacuous hole in their science; to the rational and secular politician, a fertile environment for quackery, deception, and dissent.
The Tohunga Suppression Act 1907 created three distinct types of criminal wrongdoing. Anyone who “gathers Māoris” by “practising on their superstition”, or who “misleads” or attempts to mislead by pretending to “possess supernatural powers” in the treatment of illness
42 40 at 109.
43 Reserve Bank of New Zealand “Inflation calculator” https://www.rbnz.govt.nz/monetary-policy/about- monetary-policy/inflation-calculator.
44 Māmāri Stephens “A Return to the Tohunga Suppression Act” 2001 VUWLR 32 437 at 442.
45 30 at 12.
46 Dr. Maui Pomare, Health Officer (to the Chief Health Officer) AJHR, 1902, H-31, 61.
or disease, or who “misleads” or attempts to mislead by professing prophetic power, was liable on conviction to either a fine or imprisonment. The Act then catered to three concerns, not altogether relevant to the actual improvement of Māori public health: the concern that tohunga were able to “induce Māori to neglect their proper occupations”;47 that tohunga claimed to possess supernatural powers in treatment of disease; and that tohunga were disseminating prophesies which, at times, proved politically threatening.48Māmāri Stephens notes also that the Tohunga Suppression Act 1907 was not put to any of its expected uses. Generally the Act is recognized as an inefficient piece of legislation, regardless of its ‘true’ or primary purpose, since tohungaism never seemed to truly die out, merely became more covert,49 and the allegedly dangerous prophet Rua Kenana, who appeared to be a catalyst for the Act’s passing, was never convicted beneath it. Moreover, the Act led to a seemingly small number of criminal convictions for such a widespread practice – perhaps just enough to ensure the spectre of fear remained. So what was the Tohunga Suppression Act for, if not to curb the danger of ‘tohungaism’ to Māori health?
In failing to distinguish between tohungaism which was harmful and that which was not, the Act created a “climate of fear and ill will” in which “no system of cultural knowledge can flourish.”50 Māori were then left to fend against illness in a precarious state where health resources were scarce, their medicinal practices were forced underground, and Pakeha medicine was not by any means forged as an attractive or viable alternative, given how little effort was made to nurture trust in the system and increase accessibility. The parliamentary concern then, besides perhaps that of the Māori MP’s who prompted the Act in the first place, cannot have been about Māori dying. It was, as the very title of the Act professes, all about suppression. The Tohunga Suppression Act was about undercutting political power and allaying the “acute Pakeha fear of Māori aspirations to greater autonomy.”51 It was also about assimilating Māori, through a forceful ultimatum, into accepting European paradigms and habits of health and sanitation and ensuring that, through that assimilation, there would remain some workable bodies for the state.
47 Tohunga Suppression Act 1907 Preamble.
48 44 at 458–459.
49 41 at [7.2.8].
50 41 at [7.2.8].
51 44 at 445.
The development of western medicine was inextricable from the colonial project, and both processes were at their roots necropolitical. The New Zealand state, laying claim to their sovereignty, simultaneously acknowledged their ability to save life and refrained from using it, instead launching an attack on Māori custom and belief in order to intimidate them into European ways of life.We can start drawing in here those necropolitical boundaries between useful and expendable, right and wrong, my “living body” on one side and those “body-things” on the other.52 Certain beings and behaviours were deemed risky to ‘public’ life and health, revealing the constitutional belief of the colony that the Māori were something altogether separate from the ‘public’. Hovering on the border were figures such as Maui Pomare and Apirana Ngata, who were responsible to and confined by the strictures of colonial government in attempts to improve Māori health – the TSA 1907 became somewhat of a “litmus test of loyalty” for Māori MPs, daring to occupy space as both Self and Other.53
We can also see, through the assimilative nature of the Tohunga Suppression Act, Mbembe’s idea that belonging to and being saved by your nation starts to become a ‘choice’. Any Māori who cleaved to tohungaism and remained suspect of the colonial doctor figure did so at their peril. Those who accepted the wisdom of European science and modes of living were to be rewarded with life-saving treatment, if only they could also afford and travel to receive it. The Tohunga Suppression Act was but one instalment in a process designed to make the Other more self-like so that their presence in the nation might be more easily tolerated, and did so by attempting to define a fundamental aspect of Māori culture as “wrong and in need of ‘suppression’.”54 Such an approach to improving Māori health could not have been effective, however, in a state already resigned to the idea that Māori life was expendable: “A healthy body was never at stake.”55
There is an inherent dilemma in perceiving the colonial state which at once accepts the destruction of its native race and makes strides to assimilate them. Why bother inducting them into European ways of life at all, if they are going to die out anyway? Mbembe proposes that
52 5 at 46.
53 44 at 449.
54 41 at [7.2.10].
55 5 at 134.
the mythology inherent in the colonial psyche, while relying on an “originary separation between ‘them’ and ‘us’”, also proposes a problem for the dominant race in that: 56
“It is not okay for them to not be like us. But it is also not okay for them to become like us. For the dominant, both options are absurd and intolerable in equal measure.”
A. COVID-19 as ‘sacrificial order’
History has proven that diseases will not impact ethnic groups evenly. The Māori death rate during the 1918 influenza pandemic was seven times higher than European ethnic groups,57 while during the 2009 H1N1 pandemic, Māori were twice as likely as European or ‘other’ ethnicities to be infected, three times as likely to be hospitalized58 and nearly three times as likely to die.59The national response to COVID-19 was not as “politically benign” as its adherence to science and its calls for our ‘team of 5 million’ to ‘unite against COVID-19’ might suggest.60 Simpson notes that COVID responses are inevitably “contingent upon established technologies of governance” – like the ‘household’, the nation, borders, police, and state sovereignty – which have historically worked to “insulate some by exposing others.”61
Mainstream disaster responses target those who have undisputed access to social, cultural and political capital, and can afford to ‘purchase’ their safety during the pandemic. It neglects to specify what racialized communities, historically predisposed to greater risk, are supposed to, or can, do. Being “disaster ready”, and all of its associated practices – going into lockdown and staying there, ‘flattening the curve’, stockpiling food to minimise supermarket visits, sticking to one’s ‘bubble’ – is a “discourse for the privileged.”62 The elderly, those with insecure employment or housing, those living in crowded or intergenerational homes or struggling with various forms of abuse are leading lives clearly at odds with what is "officially advised."63
56 5 at 139.
57 Geoffrey Rice Black November: the 1918 Influenza Pandemic in New Zealand, 2005, Christchurch: Canterbury University Press.
58 Michael Baker and others “Pandemic influenza A(H1N1)v in New Zealand: the experience from April to August 2009” 2009 Euro Surveillance 14(34) 19319.
59 Nick Wilson and others “Differential Mortality Rates by Ethnicity in 3 Influenza Pandemics Over a Century, New Zealand” 2012 Emerging Infectious Diseases 18 (1) 71.
60 Michael Simpson “For a prefigurative pandemic politics: Disrupting the racial colonial quarantine” 2021
Political Geography 84.
61 60 at 1.
62 Denise Blake “Preparedness and Recovery as a Privilege in the Context of COVID-19” 2020 Economic and Social Research Aotearoa. Available at: https://esra.nz/preparedness-recovery-privilege-context-covid-19/.
63 62.
In coming to a ‘state of acceptance’, Sandset argues, society has accepted as a foregone conclusion that since racialized and poor communities “live more precariously” they will inevitably face greater risk in a global emergency.64 Such structural violence is not just accepted in neoliberal states but deemed as a natural feature of our social existence, so much so that "the idea of dying for the sake of others becomes normalised”.65 We need only recall the rhetoric spun about ‘essential workers’ and nurses, belonging to that echelon of ‘heroes’ on the ‘frontline’ who were waging our ‘war’ against COVID-19. When it comes to how Mbembe’s Necropolitics operates in the context of a global emergency, we can see the border between self/other, useful/superfluous being drawn in real time. Howard argues that in such an emergency, the sovereign power determines not merely who can die but who must. The “hierarchy of life” inscribed in our social structures has thus made the pandemic a “sacrificial order”.66 The elderly, disabled, unskilled workers, prisoners, the poor and homeless, indigenous people – all are expendable in a time of crisis. That these populations (besides the elderly) are disproportionately represented by people of colour is no accident either, but “speaks to the histories of conquest” that modern society is founded upon.67The New Zealand state has continually failed to insulate Māori from detrimental health outcomes since colonisation, despite written promises to do so. In the early days of the state’s conception, widespread Māori death was spun as something fated or biologically determined. While the same rhetoric might not be as politically palatable today, Dr Donna Cormack argues that we nonetheless see similar narratives surviving, which attribute Māori health outcomes to an inherent belief in “Māori deficit”:68
“it’s either biological inferiority or it’s cultural deficit, or individual behaviour deficit, or poor lifestyle choices. Those narratives are longstanding, they’re highly racialised.”
Such myths have created not just apathy or indifference but acceptance of the ongoing disparities between Māori and non-Māori, in a way that almost naturalises this state of affairs. In accepting the precarity with which Māori live in our country, we are accepting the necropolitics of the colony. Being an entity “entirely bereft of feelings of pity”, the colonial
64 Tony Sandset “The necropolitics of COVID-19: Race, class and slow death in an ongoing pandemic” 2021
Global Public Health 16 (8-9) 1411.
65 Ben A Lohmeyer and Nik Taylor “War, Heroes and Sacrifice: Masking Neoliberal Violence During the COVID-19 Pandemic” 2021 Critical Sociology 47(4-5) 625 at 631.
66 3 at 3.
67 3 at 3.
68 28.
state assumed something was inherently wrong with Māori, and imposed foreign structures to “liquidate” Māori “forms of existing”.69 Legal sovereignty then is not just the power to decide who lives and dies, but also the power to decide what kind of lives, practices and beliefs are worth protecting. Legal installations like democracy, the ‘rule of law’ and ‘separation of powers’ obscure from view the fact that colonial power and domination lives on through our legal system, and endangers those who fall beyond the legal borders it creates.
69 5 at 129–130.
IV. LEGAL AVENUES FOR REMEDYING MĀORI HEALTH
Evident in my discussion is that the relationships between the legal and the social, historical and political have never been separate but in fact are mutually constitutive. The colonial process and its accompanying mythologies are inextricable from our history, our cultural understandings, and our modern legal system. The Crown’s colonization of Aotearoa and continual imposition of sovereignty has seen to it that both “distribution” and “outcome disparities” for Māori health have been deeply entrenched, 70 a state of affairs which all of our social institutions – not least the law – are responsible for. The question then is whether the law can be used to start recuperating health outcomes for Māori and effect change in the opposite direction, or more precisely, whether the necropolitical forces at work beneath it all are going to obfuscate such efforts, no matter how genuinely benevolent the MP or judge who writes or applies the law may be.
What a necropolitical analysis would suggest is that there are certain indelible limits on what legal changes can be made to that effect: when the modern state is founded on imperial and ideological violence (its commitment to ‘liberal democracy’ included therein), Mbembe questions whether it can ever truly effect substantial protections for minority populations living beneath it. Is there room to envision a truly pluralist state which governs according to need, or are we forever hamstrung by this “impossibility of sharing”?71 Can we use the law to circumvent or disable these necropolitical boundaries? What I intend to survey in the next section is whether we can mobilise New Zealand law to these ends, if yes, to what extent, and whether there is any value in also looking beyond state law for answers as well.
A. Human rights
There could be room in New Zealand’s human rights domain to hold the Crown to account for a widespread and systematic failure to protect the right to life. The nature of human rights law first demands however that such a right, properly construed, would impose a positive duty on
70 See P Reid, B Robson and C Jones “Disparities in health: common myths and uncommon truths” 2002 Pacific Health Dialog 7 38.
71 5 at 162.
the Crown rather than negative. In other words, is the Crown obliged to actively protect life?Or just forbear from actions which would deprive life?72
(a) Re J: B and B v Director-General of Social Welfare73
This case concerned a child suffering from a life-threatening nose bleed. His parents, Jehovah’s Witnesses, refused to authorise a life-saving transfusion. Personnel from the treating hospital, police and the Department of Social Welfare sought a court order permitting the transfusion, which was granted, and appointed the Director-General of Social Welfare as guardian for the purpose of authorising the child’s transfusion. The parents then claimed such an order contravened both their parental rights and their right to manifest their religious beliefs.74 This right was held in contrast with the child’s right to life.75 The court held that the parents right to manifestation of religious belief was a “personal right” and could not be absolute.”76 Section 8, which holds that every child has the right not to be deprived of life excepted on grounds reasonably prescribed by law, thus limited section 15 – the parent’s rights could not “imperil” their child’s right to life.77
So the state has recognized that they will allow certain positive interventions when life is threatened. The conclusion made here may only be judicially acceptable however because the contravening interest is the right to freedom of religion, which, while important, is less important in a secular state to the right to life, the “one right on which all other rights depend.”78 The case then is unlikely to be useful as a metric for determining circumstances in which the right to life will be mobilised to require that active measures be taken – rather, the case is merely “striking a balance” between two conflicting rights.79 The right to manifestation of religion then is delimited, while the right to life remains mostly untraversed. The rights being contested also belong to two private actors – the parents and the child. Whether this case will help set a precedent for an argument that the New Zealand state unilaterally impedes the right to life for Māori citizens is another issue.
72 See Zoe Brentnall “The Right to Life and Public Authority Liability: The Bill of Rights, Personal Injury and the Accident Compensation Scheme” 2010 AULR 16 110 at 111.
73 Re J: B and B v Director-General of Social Welfare [1996] NZCA 469; [1996] 2 NZLR 134.
74 New Zealand Bill of Rights Act 1990 s 15. 75 New Zealand Bill of Rights Act 1990 s 8. 76 73 at 145.
77 73 at 146.
78 Shortland v Northland Health Ltd [1998] 1 NZLR 433 at 444.
79 Mendelssohn v Attorney-General [1999] 2 NZLR 286 at [20].
(b) Lawson v Housing New Zealand80
The plaintiff in this case argued that the 1991 National government’s Yellow Book Policy, which transferred state housing to Housing New Zealand and increased rents to market rates, amounted to a breach of the right to life in depriving her of adequate and affordable shelter. The court roundly rejected the argument. The only question of law deemed ‘essential’ in the case was whether Housing New Zealand’s actions had actually ‘deprived’ the plaintiff of her life. While the court agrees a “liberal interpretive approach” is warranted in NZBORA cases, it would nonetheless require an “unduly strained interpretation” to conclude the section 8 right to life also includes a right not to be charged market rent “without regard to affordability and impact on the tenant’s living standards.” 81
The court concluded that while housing is “essential and is regarded as such by government”, subsidised rental housing is "not regarded as a continuing state function."82 Moreover, while it was not considered “necessary” to decide whether s 8 of NZBORA entirely excludes “social and economic factors”,83 the court goes to lengths to suggest that it does. In considering parallel international authorities, the court notes that in Canada, whose right to life is already drafted wider than ours, have also been reluctant to import social and economic dimensions into their equivalent provision. The Canadian Charter situates its section 7 right to life in its ‘legal rights portion’, a setting which controls the scope thus assigned.84 Our own section 8 right to life resides in our ‘life and security of the person’ section, contained in a statute enacted to affirm New Zealand’s commitment to International Convention on Civil and Political Rights.85 That the ICCPR is named is significant given that, at the time, New Zealand was also a signatory to ICESCR, and chose not to affirm that commitment simultaneously.86
80 Lawson v Housing New Zealand [1996] NZHC 1528; [1997] 2 NZLR 474.
81 80 at 494.
82 80 at 495.
83 80 at 494.
84 Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK).
85 International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 Dec 1966, entered into force 23 Mar 1976).
86 International Covenant on Economic, Social and Cultural Rights 993 UNTS 3 (opened for signature 19 Dec 1966, entered into force 3 Jan 1976).
87 Gosselin v Québec (Attorney General) [2002] 4 SCR 429
Gosselin v Quebec had a similar fact situation and judicial determination as Lawson. A 7:2 majority of the Canadian Supreme Court concluded that a Quebec regulation, which provided for reduced welfare benefits for a specific demographic, did not infringe the right to life affirmed by section 7 of the Canadian Charter. The court preferred a negative conception: the right only imposes a duty not to interfere with the right, not an obligation to ensure each person enjoys the right.Arbour J, dissenting, took issue with negative conceptions of the right to life when applied to people disadvantaged by social and economic forces:88
“Freedom from state interference with bodily or psychological integrity is of little consolation to those who ... are faced with a daily struggle to meet their most basic bodily and psychological needs. To them, such a purely negative right to security of the person is essentially meaningless: theirs is a world in which the primary threats to security of the person come not from others, but from their own dire circumstances. In such cases, one can reasonably conclude that positive state action is what is required in order to breathe purpose and meaning into their s 7 guaranteed rights.”
Arbour J also took issue with causation as typically conceived of in Canadian human rights law, and believed the state can properly be held accountable for the claimant’s inability to meaningfully exercise her s 7 rights, without needing to find direct responsibility for the socio- economic position she found herself in. The issue, Arbour J argued, was “simply whether the state is under an obligation of performance to alleviate the claimants’ condition.”89
Negatively conceived human rights domains are not just a consequence of exclusionary law- making practices, but of neoliberal ideologies. A large part of why modern human rights schemes are so deprived is that liberal states have favoured the ‘free market’ as opposed to the state as a mechanism for achieving or maintaining the ‘good life’.
There is then a politics of personal responsibility to fill in the gaps where the state might have otherwise intervened. The liberal tradition argues that society at large is not obliged to provide the needy with what they need, and that each individual must be held responsible for the choices they make. Those who find themselves suffering, whether from poverty, ill-health, or
88 87 at 445.
89 87 at 445.
unhappiness, are assumed to have had a hand in their fate, or at very least squandered the opportunities which are supposedly equally available to them as citizens. Abhorrent to the liberal ideology is the idea that such irresponsible individuals be ‘rewarded’ for their bad choices through state welfare or special legal benefits.Sullivan argues, however, that there is a converse argument – while indicia of poor socioeconomic status, like ill health, can be the outcome of poor choices, it is:90
“...a misrepresentation of the breadth of its contributing variables to argue that illnesses are only unfortunate, rather than unjust, because nobody else has actually caused them.”
The issue with neoliberalism is that it presumes equality of individuals, which we know has never really existed. The free market only really allows equal participation amongst a pre- defined class of individuals, namely those with enough money, knowledge and social capital to viably use the market to their advantage. People who have been historically disadvantaged and denied state recognition are going to be excluded, and their choices severely limited.Māori were not an unhealthy race pre-contact. It has been well-established that colonization initiated a decline in Māori health. What is more, colonization installed a structure of interwoven ideologies, policies and legal fixtures which worked in concert to devalue Māori life and disempower the Māori subject beneath the colony. This work of devaluation was not undone with the creation of the ‘democratic’ New Zealand state – merely transferred. Necropolitical policies and statutes have ensured that Māori are not as equally protected as non-Māori, and so their capacity for taking ‘personal responsibility’ for their health is fundamentally undermined. This is why Arbour J’s dissent is so cogent: it acknowledges that negatively-conceived rights mean nothing when you do not embody the ‘rational individual’ that the state envisions, because the mechanisms the state provides for making your life truly liveable do not provide for your history or extenuating circumstances as a disempowered subject. You are not able to participate as equally as others in institutions which at their very inception did not recognize you as equal.
The human rights paradigm is well-vetted and available for us to call upon, and with time, we may start to see constitutional development which takes greater coherence of social, cultural
90 Dominic O’Sullivan “Justice, culture and the political determinants of indigenous Australian health” 2012
Ethnicities 12(6) 687 at 690.
and economic rights. We might however want to call into question exactly how viable it is going to be in protecting the interests and health of Māori as social, political and legal minorities beneath the New Zealand state. Not only is New Zealand steeped in neoliberal rhetoric, and a “constitutional skepticism” which prefers negative conceptions of ‘rights’ as against a “once-protective state”,91 but the state being sovereign has exclusive authority to decide what their obligations might be – in other words, they alone have the power to decide who, and in what circumstances, they will intervene in order to protect life. The corollary is that the state, through inaction, will be deciding who it is acceptable to let die. Moreover, since this decision not to act can be couched in judicially appropriate and well-vetted ‘rights’ rhetoric, it will for the most part be done covertly – this is necropolitics in action.The nature of legal application also requires courts apply rules in highly specific manners. A rule of law must be applicable to specific facts, and inevitably require a clear, direct causal connection between the right breached and the action or omission of the state. Without a precipitating and sufficiently delineated event, seeking redress from human rights law is going to be nearly impossible. If a Māori citizen alleged their right to life was breached because they were in such a precarious socioeconomic position that they could not present to the primary health care system in time, or could not pay for a life-saving prescription, or were merely suspect of the racist doctor working at their general practice, the court is hardly going to trace such a tenuous chain of causation back to the Act, or policy, or resourcing decision which prevented them from seeking or receiving the care they needed. When you can identify the person who is going to kill you, or who has killed you, the law has a greater imperative to protect you, or avenge you – but if you cannot even begin to point at the amorphous spectre of the ‘deathworld’ you live in, no legal mechanism will be able to help.
Sovereign power is demonstrated not just by direct choices being made about who should die or be saved, but also by circumscribing what kind of lives and lifestyles are valuable. Who you are, what you believe and invest in, and what choices you ultimately make for yourself will determine whether you live the kind of life the New Zealand state is equipped to preserve and lengthen. Neoliberalism and the myth of democratic equality, and the ‘personal responsibility’ rhetoric engendered therein, take for granted the assumption that adults, as rational beings, consciously assume risks and are all equally capable of making decisions commensurate to
91 G W G Leane “Enacting Bills of Rights: Canada and the Curious Case of New Zealand’s ‘Thin’ Democracy” 2004 Human Rights Quarterly 26(1) 152 at 178.
good health.92 The corollary to that assumption, Mbembe argues, is that death is “essentially voluntary”93 – the state cannot be blamed for your risky decisions or bad lifestyle choices. The state may be willing to protect you in explicit life-or-death situations, but it cannot be held responsible for your social, cultural, or economic insecurity which, in excess, might kill you.The problem is that the choices made by someone belonging to a social minority will not, in reality, be equivalent to the choices available to others. Though the liberal democracy makes this assumption anyway, in order to legitimise its function. Key to sustaining the violence of the modern democratic state is mystification of the fact that state power is not a neutral or benign presence in your life when you have been placed as a historical disadvantage. You are put at a disadvantage by the nation state – perhaps even for the nation state – in order to ensure its survival. For the democratic majority to be provided for, they need a constitutive minority, both part and not-part of the national body, to sacrifice their own interests accordingly. Necropolitics then puts a shape to the insurmountable difficulties there are in assigning legal responsibility for disproportionate morbidity and mortality.
As Justice Collins put it plainly in Seales v Attorney General:94
“Section 8 of the NZBORA does not guarantee the state will never deprive a person of life. Rather, s 8 guarantees the state will do so on grounds established by law.”
The New Zealand human rights domain does not oblige the state to take life-saving actions, merely to forbear from taking life-ending actions, unless it does so through lawful means. Māori lives ending on average 7 years earlier than their non-Māori counterparts is, at bottom, a lawful process in this country. The Crown is not only able but obliged to regulate death amongst its population – to admit responsibility would be to divest themselves of that power, and thus erode their sovereignty. If the kind of argument proposed by Arbour J starts to become more acceptable, it may develop into real enforceable measures for social and economic protections and ensure our s 8 right is not just employed to save bare life but to ensure we are able to enjoy life. It looks like New Zealand will not, however, be able or willing to do so any time soon.
92 See 90 at 691.
93 5 at 68.
94 Seales v Attorney-General [2015] NZHC 1239 at [167].
B. ‘Indigenous’ rights
Māori and the Crown have a fiduciary-like relationship, stemming from the sui generis nature of what has been termed ‘indigenous peoples’ rights’. Various international legal instruments and indigenous movements, like the United Nations Declaration on the Rights of Indigenous Peoples, have affirmed that ‘indigenous’ groups have certain inherent rights which precede their colonization, and which constitute a legal burden on the sovereignty of colonial and settler nation-states. That Māori are recognized as the indigenous people of Aotearoa means they can, if desired, lay claim to two distinct bodies of legal rights. There are the bare citizenship rights affirmed through NZBORA or common law which have universal application to all New Zealanders, and also the rights of indigenous peoples, which includes anything governed by international instruments, stipulated in Crown-Māori treaties, or affirmed through common law, such as native title. What this means for Māori is that there could potentially be legally enforceable ‘rights’ to good health – at least to the extent that such rights might be located in pre-existing law or the Treaty.
Since the Treaty sought to provide certain guarantees for protecting Māori interests, not least their stake in the national resource and rights to receive state protection, it is definitely arguable that the Treaty is representative of a fiduciary-like relationship. The Treaty relationship can be conceived through fiduciary-like conceptions of relationality, which acknowledge the inequality of a relationship between two theoretically equal sovereign nations, whose equality has been “obscured” by our “history of colonial domination”.95
It is unlikely however that any enforceable rights to health for Māori living in New Zealand will take the form of an actual fiduciary duty. While Justice McGrath in Paki v Attorney General (No 2) considered that the unique nature of the Treaty relationship “may mean it is appropriate to recognise the existence of a sui generis fiduciary duty”,96 New Zealand courts have since decided that it is not appropriate to recognise such a duty arising from the Treaty alone.97 While it is “plain the Treaty gave rise to a relationship of partnership and trust” between Māori and the Crown, the High Court in Te Ara found it equally plain that “the terms
95 Derek Kornelson and others “Reciprocal Accountability and Fidcuiary Duty: Implications for Indigenous Health in Canada, New Zealand and Australia” 2015/2016 Australian Indigenous L Rev 19(2) 17 at 28.
96 Paki v Attorney General (No 2) [2014] NZSC 118; [2015] 1 NZLR 67 at [186].
97 Te Ara Rangatū O Te Iwi O Ngāti Te Ata Waiohua Inc v Attorney-General [2020] NZHC 1882.
and principles of the Treaty are not, directly at least, enforceable in the New Zealand courts.”98 Obiter statements throughout New Zealand’s jurisprudence might have indicated that a fiduciary duty could arise in particular cases, since one was indeed found in Wakatū,99 but no court to date “has found an enforceable fiduciary duty arising solely from the Treaty relationship” or from “the nature of Māori customary interests.”100The fiduciary duty in Wakatū was owed to the particular claimants because of their specific historical relations with the Crown. The Crown had assumed responsibility over a specified parcel of land, and thereafter failed to deliver on the promise to preserve it for and in the interests of the Māori beneficiaries. Importantly, none of the majority in that case found the Treaty itself as the basis for a fiduciary duty. The Treaty, on its own, is not enough to institute a fiduciary relationship of the kind recognized in private law, nor does the Treaty represent a universal assumption of responsibility on behalf of the Crown which might impose enforceable obligations accordingly.
Moreover, there has been concern about the “unfortunate and visceral downside” of the fiduciary concept when applied to the Crown-Māori relationship.101 Since fiduciary relationships are typically conceived of as something inherently asymmetrical, which distributes power and discretion unevenly, the concern is that implementing fiduciary duties on the Crown would imply “superiority on the part of the Crown and inferiority on the part of Māori."102 Such an implication would of course be unwelcome. Fiduciary duties may be helpful in the remedial sense, at least for the limited number of Māori who may establish legitimate claims, but they inevitably risk undermining the sacred character of te Tiriti as a document which, being much more than a mere contract, forges a relationship between two equally sovereign nations. Unless a bold judge in a fortuitous case finds it legally tenable – not to mention appropriate – to interpret the new Pae Ora (Healthy Futures) Act as the kind of assumption of responsibility which might establish a fiduciary duty to protect Māori health, any other enforceable rights to health under New Zealand law will likely be located within the bounds of our Treaty principles.
98 97 at [373].
99 Proprietors of Wakatū v Attorney-General [2017] NZSC 17; 1 NZLR 423.
100 97 at [374].
101 Paki v Attorney-General [2009] NZCA 584; 2011 1 NZLR 125 at [103].
102 101 at [103].
While states like Canada have gone to lengths to define this relationship between state and colonized peoples as fiduciary, NZ has largely “escaped” these difficulties by instead formulating the Treaty principles, a tool to help define and operationalise the legal relationship between Māori and the Crown.103While not the only or primary reason, Kingi argues that the issue of Māori health was significant during both the drafting of the treaty and the process of selling it to Māori.104 That the Treaty makers were aware of and perhaps also concerned with the miserable condition of the ‘natives’ is reflected in the Treaty’s guarantee of royal protection to Māori, a protection on par with that offered to British citizens.105 What te Tiriti is concerned with, above all else, is “equity and the promise that Māori can enjoy – at the very least – the same health and well- being as Māori.”106 Not only was the Treaty a means of preserving the Māori way of life, and a protection of the ways, means and resource for Māori to continue doing so, it signified the “benefits for Māori arising from their participation in the new society.”107 The Treaty was meant to guarantee Māori equal and equally unfettered access to national health resource, and enable them to live lives adequately insulated from inequitable health outcomes, all the while retaining the means for them to continue their independent and unique cultural practices which had sustained Māori health for generations pre-contact.
The Waitangi Tribunal specifically identified four Treaty principles implicated in Māori health provision in their Hauora health-services inquiry: partnership, active protection, equity, and options.108 The starting point, deriving from the fundamental exchange of kāwanatanga and tino rangatiratanga which forged the Treaty relationship, is that neither the “right of Māori to manifest and direct their rangatiratanga nor the Crown’s right to govern is absolute” – each partners actions must be “conditioned” by the needs of the other.109 Since the Crown is favoured
103Donna Hall “The Fiduciary Relationship Between Māori and the Government in New Zealand” In Law Commission of Canada (ed) In Whom We Trust: A Forum on Fiduciary Relationships (Irwin Law, Toronto, ON, 2002) 123–150 at 146.
104 T K Kingi “The Treaty of Waitangi and Māori Health” (paper presented to Te Mata o te Tau Lunchtime Lecture Series, Auckland, March 2006) at 4. Retrieved from Massey University at: https://www.massey.ac.nz/research/research-centres/te-mata-o-te-tau/.
105 Treaty of Waitangi 1840, art 3.
106 104 at 8.
107 Denese Henare, “Can or Should the Treaty by Replaced?” in Colin James (ed) Building the Constitution (2000) Victoria University of Wellington Institute of Policy Studies, Wellington 207 at 208.
108 Waitangi Tribunal Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry
(Wai 2575, 2019) at 27.
109 108 at [3.2] or 28.
by the power imbalance in the Māori-Crown relationship, however, it is the Crown’s responsibility as Treaty partner to ensure Māori are not disadvantaged by that relationship.The principle of partnership requires the parties to work jointly in policy ventures, obliging the Crown to consult genuinely with Māori in this process since they alone have the means of creating legislation. The principle of active protection obliges the Crown to actively protect Māori interests. As far as health is concerned, the Tribunal has previously found that this requires actively protecting Māori from the adverse effects of colonization and rectifying health disparities.110 Active protection also extends to the fundamental right to Māori autonomy, and ensuring that Māori maintain the right to decision-making power over their affairs. Equity, closely related to active protection, requires the Crown to meet a basic standard of ‘good governance’. The Crown then must accord by its own laws, ensuring that Māori are protected from institutional discrimination which threatens their status as citizens and the legal protection they derive thereby. Finally, the principle of options acknowledges that Māori have their “right to choose their own social and cultural path”.111 In the health sector specifically, options requires the Crown to protect the “availability and viability of kaupapa Māori solutions” in ways which ensure Māori are not disadvantaged by the choice they make – whether they elect for Māori or for mainstream health providers and services, both choices must be protected and advantageous.112
The Waitangi Tribunal has found that all four principles have been breached by Crown failures in the primary health care system as structured by the (now inoperative) New Zealand Public Health and Disability Act 2000. Crown Treaty failures were found in the structuring of the health system, its funding arrangements, insufficiency of data collecting (and ineffective use of what data was collected), and its accountability mechanisms. The funding arrangements disadvantaged providers that service high-needs populations, particularly Māori-led providers, and did not adequately provide for kaupapa Māori models of care. The accountability framework for major health entities largely failed to support the pursuit of equitable outcomes for Māori. Most pertinent was the failure to consistently afford Māori control of decision- making in treaty-compliant ways.113
110 Waitangi Tribunal The Napier Hospital and Health Services Report (Wai 692, 2001) at xxvi.
111 110 at [3.7] or 65.
112 108 at [3.5] or 35.
113 See 108 at [5.9], [6.5] and [7.9].
The issue with treaty principles as a means of pursuing better health outcomes is that they are only really operative as public law considerations. Statutory Treaty provisions may be cast in imperative language, they have never had the veto-power that actual laws have. While Waitangi Tribunal reports can investigate and substantiate serious breaches, they can only ever provide recommendations, which the Crown as sovereign are entitled to ignore. Watering down the Treaty into a set of ambiguous principles means that Treaty ‘rights’ for Māori, if any exist at all, exist only to the extent that the Crown wishes to create them, since the Crown still retains the “ultimate unilateral right to make laws and economic policy and to take or reject advice.”114While there is nothing inherently wrong with conceiving of the Treaty relationship as we do, and while the Treaty principles no doubt offer an ambit of protection for successful Māori claimants, the principles are, as Jones argues, a “compromise”, and cannot be the basis of the type of “principled, inter-cultural dialogue” which the Treaty relationship seems to pass itself off as entailing.115 Treaty principles offer limited protection in exchange for the continued imposition of Crown sovereignty, and so they are not so much a check on Crown sovereignty as they are an accepted imperfection. The Treaty relationship, governed by ambiguous legal principles instead of hard-and-fast legal obligations, means the Crown is often able to elude being held to account. As Cooke P has noted, “[i]f the Government, giving due weight to the Treaty principles, elects between the available options reasonably and in good faith, it seems to me that the Treaty is complied with.”116
So whether indigenous rights are cast as strict obligations or merely procedural guidelines for public decision-making and policy development, they will inevitably be vulnerable to the necropolitics inherent in liberal democracies. If Māori rights to health are founded in private fiduciary law, they will be located in an “exclusionary discourse”,117 and will only be available to very specific claimants who have dealings with the Crown pertaining specifically to their health or access to health resource. If Māori rights to health are sourced in the Treaty principles, then as public law considerations they are vulnerable to the “impossibility of sharing”, and will often be superseded by contravening interests of the greater, non-Māori public.
114 Jane Kelsey “Rogernomics and the Treaty of Waitangi an Irresolvable Contradiction?” 1989 Law in Context: A Socio-Legal Journal 7(1) 66 at 77–78.
115 Carwyn Jones “Tāwhaki and te Tiriti: A Principled Approach to the Constitutional Future of the Treaty of Waitangi” 2020 NZ Universities L Rev 25(4) 703 at 715–716.
116 Attorney-General v New Zealand Māori Council [1990] NZCA 352; [1991] 2 NZLR 129 at 135.
117 See George Fitzgerald and Stephen Young “Agony, Exclusion and Colonial Reproduction: A Critical Examination of the Doctrine of Difference in Aotearoa New Zealand” New Zealand Universities L Rev 29 31.
Moreover, indigenous rights discourse, while it can provide legal remedy for certain claimants, does little to actualize the inherent right that indigenous groups have to self-determination – something which will be crucial in improving Māori health. Asking Māori to appeal to indigenous rights paradigms first requires them to identify themselves as legal subjects that the sovereign power can take coherence of. While sometimes these subjects will be indigenous groups, and the remedies they receive thereby will necessarily be detrimental to the state, these determinations will still be consistent with Crown sovereignty at large.The modern state, through accepting international indigenous rights instruments, has been able to determine not only who classifies as a member of an Indigenous group in their nation, but also what benefits and rights attach therein, and in what circumstances they will accept responsibility. Indigenous ‘rights’ as a burden on state sovereignty might make state power imperfect, but it is an acceptable imperfection ,118 since human rights, as Glenn argues, do not emerge in opposition to the state but as the “sole, approved, means of resistance.” The fact that Māori rights which are allegedly inherent and pre-date the imposition of the Crown can nonetheless be lawfully extinguished by statute demonstrates that they are “entirely consistent with an ongoing, imperial constitutional structure.”119
So a necropolitical analysis would tend to suggest that rights discourse merely mystifies the paradigms of colonial power which necessitated such legal excursions in the first place. Wielding ones legal status as an indigenous person to mobilise the state to start saving and lengthening your life remains inherently problematic in a persisting colonial state.
C. Pae Ora (Healthy Futures) Act 2022
The Pae Ora (Healthy Futures) Act 2022 took effect on the 1st of July 2022 and majorly restructured New Zealand’s public health system. The Act has disestablished the pre-existing District Health Boards, and established three new entities: a new Public Health Agency within the Ministry of Health; Health New Zealand, a centralized body which has effectively replaced all DHB’s; and the Māori Health Authority, an independent statutory authority for improving Māori health. The Act also established Iwi-Māori Partnership Boards, who represent local and
118 117 at 50.
119 H Patrick Glenn “The Three Ironies of the UN Declaration on the Rights of Indigenous Peoples” in Stephen Allen and Alexandra Xanthaki (eds) Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publishing, Oxford and Portland, Oregon, 2011) at 176–177.
regional Māori perspectives on the needs and aspirations of Māori, as well as facilitate feedback for future planning.The ideological commitment to equity and to improving Māori health by increasing the culturally appropriateness and accessibility of primary health services is clear in the Act’s ‘health sector principles’.120 The Act obliges the health system, primarily through HNZ, to engage meaningfully with Māori (and other vulnerable populations) to develop and deliver services they need and desire. Moreover, the Act obliges the health system to provide a choice of quality services to Māori, which entails adequate resourcing of services that are culturally safe and appropriate, and which reflect mātauranga Māori.
Ngaire Rae and others, in their critique of the Pae Ora (Healthy Futures) Bill (as it was at the time of writing), have noted that while the Bill does invite significant and welcome shifts in power-sharing, it “needs to be reworked so that Māori are not structurally the junior Tiriti partner.”121 While the Act embraces equity and partnership in theory, it does so on an inequitable distribution of decision-making power. As Rae and others also note, there “appears to be limited authority and autonomy in the MHA to have reach across other Crown health and social entities”.122 While the Māori Health Authority will no doubt be working with Health New Zealand, there is nothing to indicate whether the MHA will also have its own independent relations with other prominent entities, like Pharmac or the Health Quality & Safety Commission, or whether their dealings with them will be filtered through HNZ.
Another point of contention is that while health system principle (c) states that there should be opportunities provided for Māori to exercise decision-making power on matters of importance, such decision-making power is to be levied to Māori with regard to both the "strength or nature of Māori interests in the matter”, and the “interests of other health consumers and the Crown in the matter”.123 It is a clear reminder that other health consumers and the Crown can have a stake in matters of Māori interest, while Māori can only ever have a stake in interests of their own – and even then their stake is only commensurate with the “strength or nature” of their interest.
120 Pae Ora (Healthy Futures) Act 2022 s 7.
121 Ngaire Rae and others “A Critical Tiriti Analysis of the Pae Ora (Healthy Futures) Bill” 2022 NZMJ 135 (1551) 106 at 110.
122 121 at 108.
123 Pae Ora (Healthy Futures) Act 2022 s 7(c)(i)–(ii).
It is also worth noting that the commitment to Treaty principles was also explicit in the New Zealand Public Health and Disability Act 2000, and that the importation in that Act, “despite the initial fear of some... did not push Māori to the head of the cue nor did they miraculously transform our poor health statistics.”124 The Waitangi Tribunal noted that the directions set for health provision in the NZPHDA, “while promising, were not imperative or clear enough to manifest the urgency required”125 The fear that the new Act might end up failing in the same ways is not unfounded. The Treaty principles then “[remain] problematic”,126 not only because they seem to have little force, but also because Māori are more concerned with what the actual Māori text says than what our bastardized legal principles stand to offer. That section 6 explicitly identifies the ways in which the Crown is to ‘give effect’ to the Treaty principles limits their potential application even further.This is not to say that the Act is going to be fruitless. The institution of the Māori Health Authority, and the importance of the Iwi-Partnership Boards in designing and delivering health services which will, presumably, be consistent with te Ao Māori perspectives, are welcome changes. It is possible that the new Māori statutory bodies will allow the Pae Ora Act to at least start doing what the NZPHDA could not, namely to “recognise and properly provide for tino rangatiratanga and mana motuhake of hauora Māori.”127
D. Conclusion
What I have aimed to demonstrated through this legal analysis is that Crown sovereignty and its continued imposition are the main antithetical force to all legal options for improving Māori health. In drawing legal boundaries, whether between who lives or dies or who is empowered in rights law and who is not, the Crown as sovereign creates spaces of exclusion. In determining what kind of legal person or right is recognized by the nation-state, they too are determining what kind of person is excluded from the nation-state and will not receive its protection. On one side of that boundary is justice, order, and life. On the other is injustice, precarity, and death. As Stephen Young has put it, biopolitics (and by extension, Mbembe’s Necropolitics):128
124 104 at 12.
125 108 at [5.9] or 96.
126 121 at 109.
127 108 at [8.6] or 160.
128 Stephen Young “Our Legal Borders: Interrelated Construction of Individual and Political Bodies" 2022 Law and Critique.
“...can take hold of individuals and make them live and be productive in service of the political body. Others, those who are lesser humans, may be left to die.”
What is becoming clear is that Māori will not be sufficiently empowered beneath any New Zealand law until they are treated as genuinely equal citizens, and are not constrained to partake in legal discourses foreign and hostile to them as legal subjects. As James Tully has surmised, if there is to be a truly “post-imperial dialogue”, the participants must be empowered to speak in their own ways, and not forced to speak within “the institutions and traditions of interpretation of the imperial constitutions that have been imposed over them.”129 Indigenous rights discourses, entirely consistent with the global imperial order which has dominated indigenous peoples, are going to be largely antithetical to indigenous interests bar the few claimants who are sufficiently identifiable. Since such regimes have difficulty recognizing even well-established rights, like rights of property, they will inevitably have a harder time recognizing rights of a social or economic kind, such as the right to health.
129 James Tully “Cultural Demands for Constitutional Recognition” 1995 The Journal of Political Philosophy
3(2) 111 at 128.
V. TINO RANGATIRATANGA IN MĀORI HEALTH
Māori have never yielded to defeatist attitudes which presume Māori are doomed to suffer beneath the current state. Even in fatalistic political climates that assumed Māori were predestined to die out, Māori have always shown agency and looked after their own communities, before, during, and after Aotearoa’s colonization. Tino rangatiratanga was never ceded and its exercise has never ceased.
While Crown actions are important, Durie has argued that there is an “increasing recognition by Māori that tino rangatiratanga depends primarily on Māori will and resolve”.130 Though tino rangatiratanga has been rightly recognised as something which characterizes the Crown-Māori relationship, tino rangatiratanga is also about relationships among Māori. Important, then, to the future of Māori sovereignty, is “building consensus across whanau, hapu, iwi and communities about the best way forward.”131
A. COVID Checkpoints
Māori-led COVID checkpoints were instated across the North Island to protect vulnerable Māori communities during New Zealand level 4 lockdown in 2020. Luke Fitzmaurice and Maria Bargh in their recent book surveyed the experiences of checkpoint operators from Wharekahika (Hicks Bay), Maketū, Urenui and Ngataki. These checkpoints operated to prevent access and potential exposure of vulnerable rural communities to COVID. Operated almost entirely by community volunteers, checkpoints were active for around 16 hours a day. Funding (needed, for example, to hire port-a-loos, or enlist the help of certified transport management professionals) was either non-existent or provided by local Iwi. There was no government contribution as such, apart from the contributions New Zealand Police made in their support of the operations. The checkpoints depended heavily on volunteers, not least for running them but for resourcing them. Volunteers with special expertise or contacts were important in this regard. Things like road barriers and cones were sourced by those working in road management or construction, and those with professional experience (like event management) were called upon to utilise their skills.
130 Mason Durie “Tino Rangatiratanga” in Michael Belgrave, Merate Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Wai tangi (Oxford University Press, Melbourne, 2005) 3 at 16.
131 Luke Fitzmaurice and Maria Bargh Stepping Up: COVID Checkpoints and Rangatiratanga (Huia Publishers, Wellington, 2021) at 14.
The checkpoints were informed by an acute awareness of what Māori communities have suffered historically. Niki Conrad (from Te Aupouri) recalled that during the early 1900’s, the government “pretty much left our people to die.”132 While generally the checkpoints were supported by their communities, the Ngataki checkpoint in particular saw a lot of “testing” from outsiders, prompting organisers to take a strict approach to those attempting to enter and exit the area. When exceptions became necessary, the local iwi set up their own quarantine process, asking returning whanau to spend 3 days self-isolating in a Kaitaia hotel before being allowed to pass.
While still an overwhelmingly positive venture for Māori health, the COVID-checkpoints were still vulnerable to political footballing. Simon Bridges, then-National Party leader, claimed checkpoint operators were acting unlawfully, and additionally made an unsubstantiated claim of gang intimidation occurring at the Maketū checkpoint.133 Checkpoint operators, the New Zealand Police and legal academics alike were quick to refute both claims.134 While the checkpoints made immanent sense in that they worked to protect Māori who, historically, have been left unprotected, in their demonstration of Māori resistance and sufficiency they tapped into the “uneasiness of emotion” pitted in the “underbelly of settler-colonial states”.135 Bridges capitalized on this white and settler anxiety to create divisiveness and invite suspicion. In this case, Māori were either breaking the law with no consequence, or re-writing it entirely, which would be equally egregious.
Because these measures to protect Māori communities came at a cost to everyone else’s freedom of movement, they were naturally legally dubious – never mind that Parliament had already instated similar restrictions in the form of level 3 and 4 lockdowns. While perhaps contentious, the lockdowns were still perceived as legitimate and more or less a reasonable limit on freedom of movement because they came from Parliament, the ‘true’ sovereign power of New Zealand. Such boundaries being drawn by Māori appeared, at least to some, to
132 131 at 44.
133 Matt Burrows “‘That’s a disgrace’: MPs, Police Commissioner in fiery clash over COVID-19 community roadblock” Newshub (online ed, Auckland, 30 April 2020).
134 James Baker “Coronavirus: Police refute Simon Bridges, say no gang members at Maketū checkpoint” Stuff, (online ed, Auckland, 23 April 2020); Max Harris and David Williams “Community checkpoints are an
important and lawful part of NZ’s Covid response” The Spinoff (online ed, Auckland, 10 May 2020).
135 Kelsey Leonard, “Medicine lines and COVID-19: Indigenous geographies of imagined bordering” 2020
Dialogues in Human Geography 10(2) 164 at 166.
contravene legal authority – not only because it was ‘illegal’, but because Māori are denied the same public recognition as a sovereign people with associated legal powers. The checkpoints thus threaten to disable the necropolitical structure of the settler-state because in creating their own borders, Māori were able to create a space of “radical possibility”, a possibility which is deeply threatening to the settler state and the Crown’s jurisdictional totality.136
These checkpoints have demonstrated how tino rangatiratanga might operate in future Māori health ventures as a principle which embodies both Māori autonomy and Māori collectivity. Important also to tino rangatiratanga is the idea that fostering strong and productive relationships amongst Māori will sometimes be “even more critical” than the relationship between Māori and the Crown.137 These checkpoints also demonstrate that Māori health initiatives can co-exist with national public health initiatives, and can ensure that those excluded by the mainstream and vulnerable to necropolitics can be protected.
Fitzmaurice and Bargh’s work explicates the potential tino rangatiratanga has in a modern New Zealand state. The checkpoints demonstrate, for one, that Crown-Māori partnerships do not always have to be initiated by the Crown. While the checkpoints arose in a public emergency and so were a “relatively unique example”, they demonstrate a Māori-led initative which differs from “the ‘partnerships’ initiated (and largely controlled) by the Crown, which have historically been more common.”138 In many ways, the swiftness with which Māori communities took control over their own protection “forced the hand of the police”, and allowed a measure of self-determination for iwi which "[happened] on their own terms, not the terms dictated by the state.”139 Such an occasion spells out a hopeful future for the Māori- Crown relationship.
A valid and fulfilling Treaty relationship between Indigenous and non-Indigenous peoples, as James Tully has suggested, is one characterised by mutual recognition, intercultural negotiation, mutual respect, sharing and mutual responsibility.140 Significant here is the mutual
136 Anne Spice “Fighting Invasive Infrastructures: Indigenous Relations against Pipelines” in Jaskiran Dhillon (ed) Indigenous Resurgence: Decolonization and Movements for Environmental Justice (Berghan Books, Oxford, NY, 2022) at 50.
137 130 at 17.
138 131 at 60.
139 131 at 60.
140 James Tully Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge University Press, Cambridge, 1995).
recognition demonstrated between checkpoint operators and the Police as agents of the Crown. If Māori and the Crown have proven their ability to recognise each other as equals, the checkpoints might demonstrate the potential the Crown-Māori relationship has to finally move past the colonial relationship which has overwhelmed the treaty relationship te Tiriti o Waitangi envisioned all those years ago.141
141 See Carwyn Jones New Treaty, New Tradition: Reconciling New Zealand and Māori Law (Te Herenga Waka University Press, Wellington, 2016).
VI. CONCLUSION: CALLING FORTH A VIABLE WORLD
Resigning from his post as medical director in a psychiatric hospital, Frantz Fanon asserted that:142
“...the function of a social structure is to set up institutions to serve man’s needs. A society that drives its members to desperate solutions is a non-viable society, a society to be replaced.”
This conclusion rested on the back of his experience treating traumatized subjects in Algeria, where he saw colonized peoples totally depersonalized and stripped of humanity by the colonial state and war. As Mmembe surmises, Fanon ultimately viewed the “medical act” as one which aims to bring forth a “viable world”, one which caters to needs as they arise, without imposing impossible categorical imperatives.143 To save a person’s life, to treat their suffering, and to take measures to insure their suffering is prevented, is to see and recognize their humanity as equal to one’s own. Therefore public health “at its core”, as state business of a viable society, is and must be “antiracist work”.144Geography, which has “long been a western colonial science,” constructs borders at the site of difference and creates places of violence.145 To erect a border, in necropolitical terms, is to define the organic body of your nation as against the Others; to protect the living bodies on the inside from suspension in death-worlds on the outside. Through their elaborations of self/other and valuable/expendable, the settler state, the development of New Zealand health law and policy, and each pandemic witnessed since colonisation have all been exercises in such bordering.
Mbembe’s Necropolitics asks whether “another politics of the world” is possible, a “planetary democracy” which “no longer necessarily rests upon difference or alterity” but instead on an idea of the “kindred and in-common”.146 Can our modern state recognise difference without creating such violent fissures? The conclusion drawn from this dissertation, in light of such empathetic scholarship, ought not be that we are doomed to uplift the lives of some and leave the rest to die. Such pessimism is resolutely rejected, not least because it will never serve Māori health, but because validating such pessimism flies in the face of the resiliency and agency
142 Frantz Fanon “Letter to the Resident Minister (1956) in Toward the African Revolution: Political Essays
(Haakon Chevalier (translator), Grove Press, New York, 1964) at 53.
143 5 at 147.
144 Jennifer J Garcia and Mienah Z Sharif “Black Lives Matter: A Commentary on Racism and Public Health” 2015 American Journal of Public Health 105(8) 27 at 27.
145 135 at 166.
146 5 at 40.
Māori have demonstrated throughout our entire history. Nor does my analysis mean to suggest that Māori are relegated in waiting for a benevolent, paternal state that may never eventuate – there is no suggestion that Māori have or are at all willing to divest their interests or powers of self-determination. Law created and emanated by the Crown is not the be-all and end-all for uplifting Māori health – Māori will inevitably be the crux of this operation.Given that our lived reality enmeshes us all in a two-nation, third-law country, the real question moving forth is how to reimagine a state which can recognize plurality, and whether we can begin constructing boundaries which keep people – that is to say, all people – safe. We can, if we desire, have exclusive systems which work in tandem to remain universally inclusive nonetheless, and ensure our most vulnerable are not left beyond the borders, struggling for bare life. We can remember and give heed to our history all the while moving to call forth a viable world. Such diversity of opinion and history will make such nation building exercises “both more difficult and more important.”147
How we might do it in New Zealand is beyond the grasp of my analysis here, but will clearly require more than bare changes to the law. What seems inescapable is some kind of constitutional renegotiation. I can only conclude that te Tiriti is going to be absolutely crucial to allowing legal borders to operate as places of healing and inclusion rather than death. Envisioned by the text of te Tiriti is a nation “in which multiple forms of political and legal authority can co-exist.”148 Our negative health outcomes must be tackled using strategies and techniques derived from te Tiriti, because it is clear that policies aimed to assimilate, dominate and subjugate Māori have not worked. The “interpretative gloss” placed on the articles of te Tiriti has constructed a “monocultural constitutionalism” that affords little recognition to Māori, the ‘other’, a phase which we are long due to move forward from.149 A vision of a truly postcolonial Aotearoa which, rather than locating sovereignty’s limits in the power to give and withhold life, “relocates and reconstitutes the source – and limit – of Crown sovereignty in the treaty itself”, will be a good place to start.150
147 G W G Leane “Rights Discourse: Are We All In This Alone?” 2002 Canterbury L Rev 8(1) 187 at 206.
148 131 at 10.
149 Margaret Wilson “The Reconfiguration of New Zealand’s Constitutional Institutions: The Transformation of Tino Rangatiratanga into Political Reality” 1997 Waikato L Rev 5 17 at 24.
150 Patrick Macklem “The Māori Experiment” 2002 University of Toronto Law Journal 52(1) 1 at 5.
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