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University of Otago Law Theses and Dissertations |
Last Updated: 13 April 2024
TANGATA MOANA FOR TINO RANGATIRATANGA
Exploring the Role of Pacific Peoples Within Constitutional Transformation
A dissertation submitted in partial fulfilment of the degree of Bachelor of Laws (Honours) at the University of Otago - Ōtākou Whakaihu Waka
October 2023
Acknowledgements
To my supervisor, Ahorangi Professor Jacinta Ruru, for your invaluable guidance, wisdom, and for making the time to support me. Your mahi has inspired me throughout law school, and I have felt privileged to work in this vā with you. Ngā mihi maioha ki a koe.
Many thanks to my aiga at PILSA for transforming my law school experience and modelling Pacific Excellence. I would not have made it this far without your support and enduring friendships.
To my friends for the memories, laughter and welcome distractions. I feel grateful to have such supportive people in my corner.
And to my family, near and far, especially my grandparents on both sides who are everlasting role models to me. Iron sharpens Iron.
Special thanks to my parents, Sasha and Eric, for their constant love and encouragement, and to my big brother and first friend Totolua for looking after me in Dunedin and keeping me grounded.
Table of Contents
Introduction
The Aotearoa New Zealand Constitution does not provide for Pacific peoples. For example, there is no reference to Pacific peoples in the Constitution Act 1986, the Cabinet Manual, or Legislation Guidelines despite the Realm of New Zealand including three Pacific islands and Aotearoa New Zealand being home to large, diverse Pacific Island populations. Furthermore, when considered against the backdrop of acknowledged racist and unjust Crown policies and practices targeting Pacific peoples it is problematic that our constitution does not protect or uphold Pacific peoples’ legal standing.
This dissertation is focused on exploring the Aotearoa New Zealand constitutional relationship with Pacific peoples within the context of the Māori call for constitutional transformation. The construct of constitutional transformation is not foreign, especially to Māori who have ‘discussed the need for a different constitutional arrangement since it became apparent that te Tiriti was being dishonoured by the Crown.’1
The report of Matike Mai Aotearoa is an example of Māori presenting ideas for a new constitutional order sourced in Te Tiriti o Waitangi that provides for Māori self- determination and tino rangatiratanga.2
I argue in this dissertation that Pacific peoples have an important legal role in 1) supporting the calls by Māori for constitutional transformation to assist Māori exercise of tino rangatiratanga; and 2) better understanding and developing our constitutional standing as Pacific peoples in Aotearoa New Zealand. I also touch on how constitutional transformation, as envisioned in Matike Mai Aotearoa, may affect Pacific communities, theorising about where Pacific peoples will be best placed within future governing spheres to be good legal allies to Tangata Whenua.
1 Moana Jackson "Where to Next? Decolonisation and the Stories in the Land" in Bianca Elkington and others Imagining Decolonisation (BWB Texts, Wellington, 2020) 133 at 151.
2 Moana Jackson and Margaret Mutu, He Whakaaro Here Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation. (February 2016).
To date there is little comprehensive legal work on Pacific peoples’ modern and future constitutional relationships within Aotearoa New Zealand.3 This dissertation is my attempt to help contribute to this important legal endeavour. I am inspired by the work of the Asians Supporting Tino Rangatiratanga movement (ASTR) and the Asians Legal Network (ALN).4 My title for this dissertation is a deliberate acknowledgment of their work and how Pacific peoples can draw inspiration from their endeavours.
Chapter I acknowledges my positionality and introduces some of the key terms and phrases used within the dissertation.
Chapter II is a constitutional legal inquiry into the relationships of Pacific peoples in Aotearoa New Zealand. For the purposes of this dissertation I have arranged these relationships into three categories: 1) the ancient whakapapa relationship between Māori and Pacific peoples, 2) the realm of Aotearoa New Zealand and citizenship laws, and 3) migration and immigration laws including the Dawn Raids.
Chapter III turns to the nature of constitutions. It outlines the current Aotearoa New Zealand Constitution and whether it provides for Pacific peoples. I then discuss why change is necessary, not only for Māori but also for Pacific peoples and Pākehā alike. Finally, I provide a succinct overview of a Māori constitutional framework.
Chapter IV focuses on what constitutional transformation may look like, drawing on the indicative models from the Matike Mai Aotearoa Report. I theorise about the place of Pacific peoples within these models and more generally what the role of Pacific peoples could be in achieving such legal and political change. This role could be valuable, possibly essential, in contributing both the population numbers required to make such constitutional change a political reality and the collective wisdom and tautoko that comes from shared experienced and whakapapa. I envision a more equitable and just future, built firmly on a constitution that
3 One of the key existing works I will draw upon is Dylan Asafo "Freedom Dreaming of Abolition in Aotearoa New Zealand: A Pacific Perspective on Tiriti-Based Abolition Constitutionalism" (2022)
4 See their websites for further information Asian Legal Network
<https://www.asianlegalnetwork.org.nz/>; and Asians Supporting Tino Rangatiratanga
<https://asians4tino.weebly.com/>
both enshrines and upholds tino rangatiratanga and also reflects the place of Aotearoa in the Pacific.
Chapter I: Exploration of Identity and Definitions of Terminology Used
Ko wai au? He aha ngā kupu ā-kaupapa?
A) Positionality Acknowledgment
First and foremost, it is vital I acknowledge my positionality as a law student of Sāmoan and Pākehā descent living in Aotearoa New Zealand, researching and envisioning constitutional transformation in a land to which I am not indigenous. I affirm my dedication to supporting Māori aspirations for tino rangatiratanga, and working towards a future where te Tiriti is honoured and upheld. I am aware of the privileges I have been afforded in being able to pursue tertiary education, and research a topic which may be upsetting to those that have been denied self-determination and have suffered prejudice and oppression at the hands of our colonial government. I also acknowledge that my dreams and aspirations for change as a Pacific Tauiwi should not be viewed as representing or decentring those of Māori as Tangata Whenua.
While criticism of positionality acknowledgments often draws on complaints of virtue- signalling or social justice-warrior posturing, from a Pacific perspective it is an important acknowledgment of the fact that your background and identity is and should be relevant to research, especially research about cultural issues. For Māori and Pacific peoples, cultural identity and connection is fundamental. It not only grounds you and affirms your holistic place in a collective, but it also makes you aware of your limitations. With this being said, I emphasise that this dissertation does not seek to represent the views of all Pacific communities. Furthermore, where my views conflict with mana whenua or subject matter experts, I defer to their views.
I am committed to residing within this vā, or relational space, with the utmost care and diligence, drawing on my whakapapa and the wisdom of my own ancestors and their historical experiences, as well as my considered responses to contemporary issues, ideas and realities when theorising on constitutional transformation. I acknowledge and pay homage to
the tīpuna who have so often raised this issue,5 and earlier academics, activists and leaders who have created space in which kōrero about constitutional transformation can take place and not be seen as radical or divisive, as it once was.
B) Terminology and Definitions: Pacific Peoples
The terms ‘Pacific’, ‘Pacific peoples’ or ‘Pasifika/Pasefika’ (a transliteration) are all umbrella terms used to describe the people of Oceania.6 They were originally coined by government agencies in Aotearoa New Zealand to describe the large groups of migrants coming from the Pacific region.7 Esteemed Samoan academic Albert Wendt has said the term ‘Pacific Islander’ only applied when he arrived in Auckland Airport.8 Prior to arriving in Aotearoa New Zealand, Pacific peoples would instead identify with their home island group, referring to themselves as Fijians, or Samoans, for example.
There has been debate amongst Pacific scholars on the appropriateness of the aforementioned terms, due to their colonial origins and the cultural homogenization of these diverse groups. There are obvious issues that come from using umbrella terms which lump together culturally diverse and linguistically distinct groups under a singular encompassing phrase.9 The terms can be argued as placing the vast cultures and backgrounds which make up the Pacific diaspora into one box and thus erasing, or ignoring the individuality of each culture.10 ‘Pasifika’ has been criticised as excluding people from Micronesia and Melanesia. Its
5 Jackson and Mutu, above n 2, at 5.
6 Oceania typically includes Australasia, Melanesia, Micronesia and Polynesia and therefore encompasses Australia and New Zealand. However, in the context of this dissertation when referring to Pacific peoples I will be focusing exclusively on those hailing from the ethno-geographic groupings of Melanesia, Micronesia and Polynesia.
7 Ministry of Education “Pacific and Pasifika terminology” (2022) Tapasā, Te Kete Ipurangi
<https://tapasa.tki.org.nz/about/tapasa/pacific-and-pasifika-terminology/>
8 See Dion Enari and Innez Haua “A Māori and Pasifika Label – An Old History, New Context” (2021) 5(70) Genealogy 1-7 at 3; and Andrew McRae “‘Pacific Islander’ and ‘Polynesian’ are degrading, insensitive catchall terms – researcher” (22 July 2021) Radio New Zealand
<https://www.newshub.co.nz/home/new-zealand/2021/07/pacific-islander-and-polynesian-are- degrading-insensitive-catchall-terms-researcher.html>
9 Alice Te Punga Somerville Once Were Pacific: Māori Connections to Oceania (University of Minnesota Press, 2012).
10 Auia Vaimaila Leatinu’u “Pasifika: Is this term unifying or stripping Pacific people of their identity” (26 April 2023) Pacific Media Network <https://pacificmedianetwork.com/articles/pasifika- is-this-term-unifying-or-stripping-pacific-people-of-their-identity->
etymological origin was in the New Zealand Ministry of Education, where it was typically used to refer to migrants from Polynesian islands.11 Less common terms like ‘Oceania’ and ‘Moana peoples’ were preferred at times by some Pacific scholars because they were coined by Pacific peoples rather than colonising groups or individuals. However, some still find fault with these phrases. It has been argued they have been ‘rightfully critiqued for homogenising the Pacific regional experience into one that is centred on the sea, while many larger islands in the Pacific region retain substantial inland lifestyles that are distanced from the ocean.’12 It can therefore be hard to find phrases to describe cultural groups that do not offend some individuals and groups, especially since there are contrasting views on the matter.
On one hand, generalisations and stereotyping can occur when using these umbrella terms, but one can also choose to see the terms as unifying. Pacific Studies lecturer Caleb Marsters notes umbrella terms can have an important societal role to play in terms of ‘bringing our Pacific people together as a collective’: ‘I think that the ‘Pacific’ or ‘Pasifika’ label is a strength we can draw on to bring our numbers and power up to mobilise our communities.’13 Context is always going to be significant when deciding which term is appropriate. It is also necessary to consider whether that decision is being made by someone of Pacific descent, or someone non-Pacific who is potentially limiting someone else’s identity and culture.
In this dissertation, I have elected to use the term ‘Pacific peoples’ and ‘Pasifika’ interchangeably as terms referring to peoples from the regions of Polynesian, Micronesia and Melanesia living in Aotearoa New Zealand. At the same time, I make explicit acknowledgment of the wide diversity of Pacific cultures within these regions.
Te Tiriti o Waitangi/The Treaty of Waitangi
These terms will not be used interchangeably in recognition of the fact that they are two separate documents. I will refer to te Tiriti as the binding and foundational treaty for Aotearoa New Zealand in line with the doctrine of contra proferentem, and refer to The Treaty of Waitangi when talking about the English ‘translation’.
11 Kaitlin Abbott "Tuākana/Tēina: Relational Responsibilities of Pacific Tauiwi to Māori and te Tiriti o Waitangi" (MA Thesis, Te Herenga Waka - Victoria University of Wellington, 2022) at 4.
12 At 4.
13 Leatinu’u, above n 10.
Indigenous
Below is an extract from the 1983 working definition of ‘Indigenous’ used by the United Nations, as written by Jose R. Martinez Cobo:
Indigenous communities, peoples and nations are those which, having a historical continuity with pre-invasion and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those territories or parts of them. They form at present non-dominant sectors of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems.14
A criticism of this working definition draws on the implication that in order to qualify as Indigenous you must have been colonised and a minority in your homeland.15 This critique holds weight since if you were to apply this logic, some Pacific Island communities would not count as ‘Indigenous’ in their own islands. Not all Pacific Island nations were colonised, and in many island nations Pacific peoples are the dominant population. It would be strange to suggest Tongans were not Indigenous to Tonga since Tonga was never formally colonised. Tā Mason Durie (Rangitāne, Ngāti Kauwhata, Ngāti Raukawa) has suggested another alternative definition for Indigenous stating:
‘The principle of indigeneity is essentially based on a world view that emphasises the link between people and their natural environment as a fundamental starting point...arising from a close and enduring relationship with defined territories, land, and the natural world...the indigeneity principle reflects an ecological orientation and is captured in the concept of Tangata Whenua which ascribes particular attributes to groups who have a special relationship with a defined locality.’16
Indigenous is evidently a fluid term that is still being finessed. I posit that Pacific peoples are indigenous to their home islands regardless of whether there is a power imbalance as a result of colonisation in that respective island. In the context of this dissertation, taking into account
14 Jose R. Martinez Cobo, Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities produced this description of Indigenous peoples in his famous Study on the Problem of Discrimination against Indigenous Populations.
15 Kaitlin Abbott, above n 11, at 5.
16 Mason Durie “Measuring Māori Wellbeing” (New Zealand Treasury Guest Lecture Series, August 2006) at 13.
the various interpretations of ‘Indigenous’, the term is mostly used in reference to Māori as Tangata Whenua who are Indigenous to Aotearoa.
Tauiwi, Tangata Whenua, Tangata Tiriti and Tangata Moana
In te reo Māori Tauiwi can be used to refer to anyone non-Indigenous to Aotearoa. Although the first translation given in Te Aka Māori Dictionary is ‘foreigner, European, non-Māori, colonist’, the term is usually not meant in a pejorative sense, despite some aversion to its use.17
Tangata Whenua means the people of the land or ‘local people, hosts, indigenous people’ and refers to Māori. Tangata Tiriti therefore encompasses everyone else living in Aotearoa New Zealand. They have been allowed to live in Aotearoa as Tauiwi because of te Tiriti o Waitangi, which has been referred to as the founding immigration document for everyone who came to Aotearoa New Zealand from other countries. Professor Ranginui Walker (Whakatōhea) has argued that the ‘original charter for immigration into New Zealand is in the preamble of the Treaty of Waitangi.’18 It proposed peaceful settlement of immigrants to Aotearoa– a country already occupied by indigenous people. Therefore, citizens of Aotearoa New Zealand fall under two main categories. You are either Tangata Whenua and indigenous to Aotearoa or you are Tangata Tiriti, the people of our Tiriti, and call Aotearoa New Zealand home by virtue of this foundational treaty. Importantly, it is not always going to be a black and white distinction between the two as many will whakapapa to both groups. Tangata Moana is a less-commonly used phrase used to refer to Pacific peoples. In contemporary times, Tangata Moana is used exclusively for people who whakapapa to the Pacific region excluding Māori (Tangata Whenua). However, there is still acknowledgment that while Māori are Tangata Whenua, they are also descendants of Tangata Moana.19 The potential legal ramifications of this third categorisation will be explored further in this dissertation.
17 See for example Eugene Bingham "Murray McCully fury over 'Tauiwi' graduates" (13 March 2004) NZ Herald <https://www.nzherald.co.nz/nz/murray-mccully-fury-over-Tauiwi- graduates/H5UZ7NJ4ME2BPO2RZCSG5OTRUQ/>
18 Ranginui Walker "New Zealand Immigration and the Political Economy" (1993-94) 4(2) SCJ 86 at
87.
19 Atholl Anderson, Judith Binney and Aroha Harris Tangata Whenua: An Ilustrated History (Bridget Williams Books, 2014) at 25.
Chapter II: Pacific Peoples’ Constitutional Legal Relations in Aotearoa New Zealand
What are the formal relationships between Aotearoa and the Pacific?
Whakarongo ki te au o te moana The ocean put salt into our veins The ocean brought us together
To find each other in Aotearoa New Zealand
Dr Haare Williams (Ngāi Tūhoe, Te Aitanga-a-Mahaki)
Despite being a part of Oceania, with neighbouring Pacific Islands on its backdoor step, Aotearoa New Zealand still has a long way to go to claim and fully inhabit its identity as a Pacific nation rather than a former colony of Britain. Esteemed Māori scholar and rangatira, the late Dr Moana Jackson (Ngāti Kahungunu, Ngāti Porou), has written:
‘The tīpuna never forgot that, as much as whakapapa tied us to this land, it also tied us to the Pacific Ocean that we call Te Moana-nui-a-Kiwa...we never lost sight of the fact that we were still standing on Pacific Islands...’20
Conceptualising Aotearoa in this region and remembering our history and whakapapa is important when reimagining a constitution that is both appropriate for a Pacific nation and affirming of tino rangatiratanga aspirations. It is also significant when considering what role Pasifika peoples have in constitutional transformation and provides a backdrop to inspire new ideas and beginnings.
In order to examine what role Pacific peoples can play in constitutional transformation, and how the law can enable such change, it is necessary to look at Pacific relationships and foundations in Aotearoa. This chapter provides the background and context to examining the legal standing of Pacific peoples in Aotearoa New Zealand. This has been organised into three entry-level ways.
20 Jackson, above n 1, at 137-138.
A) Pacific Peoples’ Relationship with Māori
Mā te tuakana ka tōtika te teina, Mā te teina ka tōtika te tuakana.21
While seen in contemporary times as two distinct cultural groups, Māori and Pacific peoples are bound by an ancient whakapapa relationship which connects them both intrinsically to Te Moana-Nui-a-Kiwa (the Pacific Ocean) and to each other. Migrants from the Polynesian region were the first people to reach Aotearoa New Zealand in deliberate voyages of discovery on large vaka between 1250 and 1300 AD.22 Alongside the transportable economies (including things such as horticultural plants and animals) introduced to these islands, the first peoples of Aotearoa brought Kupe’s Law with them.23 Kupe was a master navigator and wayfarer from Hawaiki, and is renowned as being the first to discover the islands of New Zealand.24 Kupe’s Law has been referred to as the first law of New Zealand by Tā Joe Williams (Ngāti Pūkenga, Te Arawa) who stated: “The system of law that emerged from the baggage Kupe’s people brought and the changes demanded of his descendants by the land itself have come to be known as tikanga Māori.”25 Consequently, there are many
21 This Māori whakataukī or proverb talks about the tuākana-tēina relationship. From the older sibling, the younger learns the right way to do things and from the younger sibling the older one learns to be tolerant. Whakaata Māori translates the whakataukī as meaning: ‘Seek guidance from both young and old, the two will balance each other out’. See “MKM Reo Māori Booklet” Whakaata Māori <https://www.maoritelevision.com/sites/default/files/attachments/MKM-Proverbs.pdf>
22 Somerville, above n 9, at 17.
23 Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” (2013) 21 Wai L Rev 94.
24 Te Ahukaramū Charles Royal “First peoples in Māori tradition – Kupe” (8 February 2005) Te Ara – the Encyclopedia of New Zealand <https://teara.govt.nz/en/first-peoples-in-maori-tradition/page-6>
25 Williams, above n 23, at 2.
similarities between Pacific cultures and tikanga Māori. This can be seen not only in linguistic similarity but also in values, customs and traditions. Māori and Pacific peoples have a special connection akin to a tuākana-tēina relationship that stems from this historical kinship bond. Samoan academic Dr Melani Anae has explored how this relationship is often interchangeable:
“...sometimes we Pacific visitors are recognised as tuākana or older sibling, which acknowledges this ancient connection, or, we are recognised as tēina or their younger sibling, which acknowledges that they are Tangata Whenua of Aotearoa and we are visitors. Therefore, this va, this tuākana/tēina recognition is acknowledgment of the social and sacred bonds of the va of our connections.”26
The vā (written interchangeably with or without a macron) is a term used to describe relational space that specifically comes from the Polynesian islands of Samoa, Niue and Tonga.27 Samoan poet and writer Albert Wendt has defined the term:
‘Va is the space between...not empty space, not space that separates, but space that relates, that holds separate entities and things together...The meanings change as the relationships/the contexts change. A well-known Samoan expression is ‘la teu le va.’ Cherish/nurse/care for the va, the relationships. This is crucial in communal cultures that value group, unity, more than individualism.’28
The relationship between Māori and Pacific peoples living within Aotearoa New Zealand has thus always been a close one dating back to ancient times of shared genealogy. Tā Hirini Moko Mead (Ngāti Awa, Ngāti Tuwharetoa, Tuhourangi) has written: “there is honour in being part of the peoples of Polynesia and knowing that we have relatives spread across the great Pacific Ocean.”29 While Māori therefore are ‘ethnically Polynesian and Aotearoa is clearly a part of the Pacific region’, Māori are the Indigenous peoples of Aotearoa New Zealand through continuous and uncontested occupation of these islands for hundreds of years before the British arrived.30
26 Melani Anae "The Treaty of Waitangi and the va between Māori and Pacific peoples in Aotearoa New Zealand" (4 February 2021) Pacific Media Network
<https://pacificmedianetwork.com/articles/the-treaty-of-waitangi-and-the-va-between-mori-and- pacific-peoples-in-aotearoa-new-zealand>
27 Asafo, above n 3, at 89 and 111.
28 Albert Wendt “Tatauing the Post-Colonial Body” (1996) 42(43) Span 15-29.
29 Sidney Moko Mead Landmarks, Bridges and Visions (Victoria University Press, Wellington, 1997) at 7-8.
30 Somerville, above n 9, at xvii.
Despite this ancient shared whakapapa relationship, care must be taken to ensure there is not over-homogenisation of Māori and Pacific peoples. The term ‘Māori and Pasifika’ became a collective label ‘fraught with racist undertones’ within the context of New Zealand government policy.31 The lumping of Māori and Pacific peoples together often generates negative representations and stereotypes,32 and also fails to explicitly acknowledge that Māori and Pacific peoples’ ‘respective experiences of racism and white supremacy differ in Aotearoa.’33 Pacific Studies graduate Kaitlin Abbott (of Cook Island Māori and Pākehā descent), has noted that ‘not only does the homogenisation of our issues lead to a lack of considerate and effective problem solving, but it also damages our perceptions of, and relationships with, one another.’34 It is thus important both within policy and our constitution to uphold and respect the ancestral whakapapa relationship between Māori and Pacific peoples, whilst ensuring each cultural group is seen as separate and the status of Tangata Whenua is honoured. Author Alice Te Punga Somerville (Te Āti Awa, Taranaki) has written:
‘Pasifika communities are in two places at once: in New Zealand, as citizens and residents of a settler nation, and in Aotearoa, as manuhiri in a group of islands in the Pacific populated by relatives.’35
Today, the Pacific diaspora has resulted in more Pacific peoples living in Aotearoa than in many of their motherlands,36 and many share both Pacific and Māori whakapapa. Former Minister of Pacific Peoples Aupito William Sio estimates around two thirds of New Zealand born Pasifika today also whakapapa Māori.37
31 Enari and Haua, above n 8, at 3.
32 At 3.
33 Te Kāhui Tika Tangata Human Rights Commision Maranga Mai! The dynamics and impacts of white supremacy, racism, and colonisation upon tangata whenua in Aotearoa New Zealand. (November 2022) at 44.
34 Abbott, above n 11, at 24.
35 Somerville, above n 9, at 139.
36 More of the population from the Pacific communities of Tokelau, the Cook Islands and Niue are living in New Zealand than in their home islands according to the 2018 Statistics New Zealand Census. See Ministry for Pacific Peoples Pacific Aotearoa Status Report: A snapshot (2020).
37 Interview with Aupito William Sio, Minister of Pacific Peoples (Pacific Waves, Radio New
Zealand, 18 October 2018); and see more generally Koro Vaka'uta "Māori-Pasifika: Generation B emerging in Aotearoa" (8 February 2021) RNZ <https://www.rnz.co.nz/international/pacific- news/435907/maori-pasifika-generation-b-emerging-in-aotearoa>
Over the course of our history, this close cultural relationship has often manifested in solidarity. Pacific peoples face many of the same inequities and hardships as Māori due to the white supremacist ideology underpinning colonisation, and both communities have often rallied in support of one another. Anae highlights ‘there are so many historical examples of Māori/Pacific vā where we have stood side by side in solidarity with each other, not only on factory floors but also in highly political and philosophical contexts.’38 An example of this political solidarity can be seen during the Mau Movement that emerged in the late 1920s. The Mau Movement was born out of the oppression of Samoans by the New Zealand Administration, which led to calls for Samoan independence. Samoans faced many challenges similar to those Māori faced in Aotearoa, including their sovereignty and rights to their lands being threatened.39 As a result of challenging the colonial authority of the New Zealand Crown in Samoa, many Mau leaders were captured and exiled to other countries.One of the leaders sent to Mt Eden gaol in 1929 was Tamasese Lealofi Aana III. During his time in prison he was visited by Sir Maui Pomare (Ngāti Mutunga), a Māori doctor and politician who was so impassioned by their exchange that he wrote a letter to the New Zealand Samoa Guardian reflecting on the injustice and sending his strength. Anae describes this encounter as one where:
‘...indigenous historical narratives, status respect and shared colonial experiences and the fight for sovereignty in their own lands merged in the unspoken sentiments of respect and aroha...’ 40
The Polynesian Panther Party, founded in 1971 as a political activist group inspired by the Black Panthers, worked alongside Ngā Tamatoa, a Māori activist group, to promote Māori rights, fight racism, and challenge injustices perpetrated by the Crown throughout the 70s.41 These injustices included violations of the Treaty of Waitangi, and their efforts contributed to te Reo Māori becoming an official language of Aotearoa in 1972, amongst other things.42 Members of the Polynesian Panther Party and Pacific allies were there to support Māori during the 1975 land marches, the occupation and protest at Takaparawhau Bastion Point,
38 Anae, above n 26.
39 FotuoSamoa Jody Jackson “Why the Treaty of Waitangi is so significant for all Moana people” The Coconet.TV < https://www.thecoconet.tv/coco-talanoa/pacific-blog/why-the-treaty-of-waitangi-is-so- significant/>
40 Anae, above n 26.
41 Melani Anae The Platform: The Radical Legacy of the Polynesian Panthers (Bridget Williams Books, Wellington, 2020) at 135.
42 At 136.
and more recently in 2020 at Ihumatāo.43 These are merely a few examples of this Pacific and Māori vā being maintained. The special relationship between Māori and Pasifika, which stems from this ancient shared whakapapa, fosters this vā. Moving forwards to create a constitution that caters for everyone, it is important to acknowledge and nurture this vā and use the strength that comes from the similar cultural worldviews when Pacific peoples stand in solidarity with Māori for constitutional change.
B) Realm and Citizenship
The relationship between the New Zealand Government and the Pacific Islands began with New Zealand’s colonial rule in the Pacific and the expansion of the realm of New Zealand. This expansion resulted in many people from the Pacific region becoming citizens of New Zealand.
In 1901, the Cook Islands and Niue became territories of New Zealand after they were annexed to the Crown.44 In 1925, Tokelau was detached from the British colony of the Gilbert and Ellice Islands and the Governor-General of New Zealand was appointed as Governor of Tokelau.45 It was not until 1949 that Tokelau was formally declared to be a part of New Zealand.46 During World War I, New Zealand took control of German Samoa in August 1914 and administered (what was known at the time as) Western Samoa under a League of Nations mandate in 1920.47 Despite this administration, Western Samoa was never formally brought within the sovereignty of the Crown.48 However, the impact of the New Zealand administration on Samoa was still significant, especially since Samoans were given little autonomy over their own affairs. Samoan leaders were not consulted by the League of Nations, and legislation was already put in place to establish a British colonial model to administer the people of Western Samoa.49 The power that the Mandate conferred was held
43 Anae The Platform, above n 41, at 137-138.
44 Janet McLean and Alison Quentin-Baxter This Realm of New Zealand: The Sovereign, the Governor-General, the Crown (Auckland University Press, Auckland, 2017). [This Realm] at 81. 45 Union Islands (No 1) Order 1925 and Union Islands (No 2) Order 1925.
46 Tokelau Act 1948, s 3.
47 Graham Hassall “New Zealand, The League of Nations, and the Mandate Over Western Samoa: The Early Years” (2016) 22 NZACL 21-42 at 21.
48 Alison Quentin-Baxter "The Cook Islands, Niue and Tokelau as Parts of the Realm of New
Zealand" (Nov 2021) 52(3) VUW L Rev 579 at 582.
49 See the Samoa Constitution Order which replaced the military occupation of Western Samoa with a civil administration and the Samoa Act 1921 which laid out the foundations of government in Samoa.
by the Sovereign.50 The Governor-General also held certain statutory powers within Western Samoa and the executive government was vested in the King as if ‘the Territory was part of His Majesty’s dominions.’51
Today, the Realm of New Zealand comprises of New Zealand, its two dependent territories of Tokelau and the Ross Dependency, and the self-governing States of the Cook Islands and Niue.52
New Zealand’s relationship with and presence in Western Samoa continued from 1914 until 1962 when it became the first nation in the South Pacific region to gain independence.53 The relationship between the New Zealand Government and Western Samoa was a tumultuous one at best with many Samoans unhappy with the way the government ruled. To start with, Samoans were initially given little power over their own governance and affairs under the Samoa Act 1921.54 Amongst other factors, Samoans were also unhappy with the recklessness of the New Zealand administration. A ship arriving from Auckland to Western Samoa in 1918 failed to quarantine, allowing the global influenza epidemic to spread to the small island community. The New Zealand administration was held ‘accountable’55 for 8,500 Samoans dying (22% of Samoa’s population).56 The administration was criticised widely as being ‘responsible, if not for the very presence of the disease, at least for a complete failure of initiative to forestall it or prepare for its effects’.57 A member of the New Zealand Administration responsible for the failure to quarantine, Lieutenant Colonel Robert Logan, described the remaining grieving population of Samoa as being ‘like children, they will get over it if they are handled with care...they will later on remember all that has been done for
50 Western Samoa Order 1920, made by His Majesty with the advice of His Privy Council on 11 March 1920.
51 Samoa Act 1921, ss 4 and 5.
52 Letters Patent Constituting the Office of Governor-General of New Zealand 1983 SR 1983/225.
53 Western Samoa Act 1961, s 3.
54 Samoa Act 1921, s 4.
55 See quote from Carmel Seuploni in “Remembering the lives lost in the influenza epidemic in Samoa” (24 August 2019) RNZ <https://www.rnz.co.nz/international/pacific- news/397372/remembering-the-lives-lost-in-the-influenza-epidemic-in-samoa>
56 Sandra Tomkins “The Influenza Epidemic of 1918-19 in Western Samoa” (1992) 27(2) JPH 181 at
181.
57 At 191.
them in the previous four years unless they are spoiled with over consideration.’58 In his final dispatch as administrator Logan reported ‘very considerable unrest and passive resistance among the Samoans, and bitter resentment due to feeling that proper precautions were not taken to prevent the introduction of the influenza into Samoa.’59
The displeasure with the colonial rule of Samoa and the paternalistic policies of the New Zealand administration resulted in the beginning of the Mau movement in late 1926 to 1927, which campaigned peacefully for self-governance, democracy, and independence.60 Tactics included Samoans refusing to pay taxes and co-operate with the Government.61 The New Zealand Government responded with aggression and scaremongering, banishing prominent members of the movement and stripping them of their chiefly titles62, and even deporting those that threatened their authority.63 The tensions culminated in ‘Black Saturday’ in 1929 when military police from New Zealand fired at a peaceful crowd of Mau protestors, killing at least nine Samoans including the high chief and prominent community leader and figure Tupua Tamasese Lealofi III.64 This left a deep sense of grievance for Samoans, which was only further exacerbated in the coming days and weeks. The New Zealand Government was set on suppressing the Mau movement and continuing its dictatorial rule of Western Samoa. Administrator Stephen Allen declared it was illegal to wear the Mau uniform (a distinctive violet lavalava) and the arrival of the HMS Dunedin from New Zealand allowed the administration to crush what was left of the Mau movement through aggressive tactics.65 Western Samoa’s desire for independence and their disdain for the New Zealand Government naturally remained strong and in 1962 they gained independence.66 A new constitution was
58 Logan’s report on his administration of Western Samoa (8 August 1919) in Ministry for Culture and Heritage "Influenza in Samoa" (22 April 2020) NZ History.
<https://nzhistory.govt.nz/culture/1918-influenza-pandemic/samoa>
59 Report by Colonel Logan to Liverpool 20/1/19 GS08/19 in Michael J Field Mau: Samoa's Struggle for Freedom (Polynesian Press, Auckland, 1984) at 48.
60 Michael J Field Mau: Samoa's Struggle for Freedom (Polynesian Press, Auckland, 1984) at 84-85.
61 At 96-99.
62 Exh 19-20 1928 Royal Commission into the Administration of Western Samoa Appendices to the Journal of the House of Representatives Wellington 1914-35 in Michael J Field Mau: Samoa's Struggle for Freedom (Polynesian Press, Auckland, 1984) at 97.
63 Field, above n 60, at 107.
64 At 155.
65 At162 and 165.
66 Western Samoa Act 1961, s 3.
enacted,67 as well as a Treaty of Friendship,68 which guaranteed New Zealand would provide assistance to Samoa in administrative or technical matters and foreign affairs, among other promises.69
In 2002, Hon Helen Clark visited Samoa during her time as Prime Minister of New Zealand to issue a formal apology for ‘the inept and incompetent early administration of Samoa by New Zealand’.70 However, the colonial rule of Samoa by New Zealand remains an uncomfortable and emotive chapter in Samoa’s history, serving as evidence of New Zealand’s tainted colonial relations in the Pacific. The history of the relationship between Samoa and the Crown provides context to Pacific peoples’ contemporary perceptions of the New Zealand Government. It is illustrative of simply one colonial encounter in the Pacific, encounters which writer and academic Karlo Mila (of Tongan, Samoan and Pālagi descent) writes:
“...were characterised by unequal power dynamics, the loss of governance and diminished autonomy of indigenous Pacific peoples over law and decision-making, the extraction of resources and land, and a history of dispossession and possession that marked the beginnings of contemporary ethnic inequalities.”71
Unlike Samoa, which opted for full independence (in accordance with Principle VI of the General Assembly resolution 1541 (XV) of the United Nations),72 the Cook Islands and Niue have chosen to remain in free association with New Zealand as self-governing states.73 This means they have New Zealand citizenship and reap benefits of this close relationship including economic aid and defence whilst still maintaining the power to make their own
67 Constitution of the Independent State of Samoa 1960.
68 Treaty of Friendship between the Government of New Zealand and the Government of Western Samoa 453 UNTS, 3 (signed 1 August 1962, entered into force 1 August 1962).
69 Article IV and Article V.
70 “Full text: Helen Clark’s apology to Samoa” (4 June 2002) New Zealand Herald
<https://www.nzherald.co.nz/nz/full-text-helen-clarks-apology-to- samoa/65TV2LDV6S7HHIYRDCFSC5YOZI/?c_id=1&objectid=2044857>
71 Karlo Mila "Deconstructing the Big Brown Tails/Tales: Pasifika Peoples in Aotearoa New Zealand"
in Avril Bell, Vivienne Elizabeth, Tracey McIntosh and Matt Wynyard (eds) A Land of Milk and Honey? Making Sense of Aotearoa New Zealand (Auckland University Press, Auckland, 2017) 95 at 98.
72 United Nations General Assembly Resolution 1541 A/RES/1541(XV) (1960), Principle VI.
73 Cook Islands Constitution Act 1964, s 3; Niue Constitution Act 1974, s 1(2); and Niue Constitution Act Commencement Order 1974.
laws. Tokelau still remains a territory of New Zealand, linking our country even more to the South Pacific region.74 Despite two referendums in 2006 and 2007, the small island community has still elected to remain a non-self-governing territory of New Zealand.75 The connection with these three islands in the Pacific is proof of the close relationship between contemporary Aotearoa New Zealand and the South Pacific region. All these historical connections highlight and reinforce New Zealand’s responsibilities to Pacific citizens in Aotearoa. The expansion of the Realm of New Zealand provided a conduit for many Pacific peoples (from Samoa, the Cook Islands, Niue and Tokelau) to obtain New Zealand citizenship. This deliberate expansion of the realm also carried with it a duty of care to these new citizens, a duty which has not always been recognised and upheld.
Upon the signing of te Tiriti o Waitangi in 1840, Aotearoa New Zealand was considered by the Crown to be a British colony. Everyone living in New Zealand became British subjects and British law came into force. In 1948, a Citizenship Act was enacted which granted all current New Zealand residents New Zealand citizenship if they had been born or naturalised as British subjects.76 The Citizenship Act 1977 repealed this 1948 Act and defined those holding Cook Islands, Tokelau and Niue citizenship as being New Zealand citizens by birth.77
While citizenship for these three Pacific islands has been relatively straight-forward in legislation, the citizenship status of Samoans living in New Zealand has been more precarious. The 1923 and 1928 British Nationality and Status of Aliens (in New Zealand) Acts had already provided for the naturalisation of Western Samoans.78 However, following Samoa’s independence in 1962 it became less clear what would happen for Samoans who held New Zealand citizenship. In 1982, Samoan woman Falema’i Lesa was prosecuted for a visa overstay under the 1964 Immigration Act. She argued she was a New Zealand citizen and appealed her conviction all the way to the Privy Council.79 In the judgment delivered by
74 Tokelau Act 1948, s 3.
75 Quentin-Baxter, above n 48, at 603.
76 The British Nationality and New Zealand Citizenship Act 1948 (repealed), ss 6 and 16.
77 Citizenship Act 1977, s 6.
78 1923 British Nationality and Status of Aliens (in New Zealand), s 14; and 1928 British Nationality and Status of Aliens (in New Zealand), s 7.
79 Lesa v Attorney-General [1982] UKPC 30; [1982] 3 WLR 898; [1982] 1 NZLR 165; [1983] 2 AC
20. The case was first heard in the District Court, however only the Court of Appeal and Privy Council decisions have been printed in the New Zealand Law Reports.
Lord Diplock, the court looks to s 7 of the 1928 British Nationality and Status of Aliens (in New Zealand) Act and holds that s 7 ‘emphatically and unequivocally’ establishes that ‘a person born or resident in Western Samoa is to be treated in the same manner in all respects for all the purposes of the Act of 1928 as if he had been born or resident in New Zealand proper.’80 It was held all Western Samoans born between 1924 and 1948 were indeed British subjects and were thus New Zealand citizens by virtue of the British Nationality and the New Zealand Citizenship Act 1948.81 Furthermore, earlier legislation within New Zealand was already treating Samoans born after 13 May 1924 as ‘natural-born British subjects’.82 Effectively, when New Zealand had established its own citizenship in 1948, this cohort of Samoans in Western Samoa had also received New Zealand Citizenship.83
The outcome in Lesa v Attorney-General had a significant impact on Samoans living within New Zealand. However, the National government, under the leadership of then Prime Minister Hon Robert Muldoon, was clearly not happy. They made the quick and controversial decision in response to the Privy Council’s ruling to pass the New Zealand Citizenship and Western Samoa Act 1982. This Act, described by Teanau Tuiono, the Green Party’s spokesperson for Pacific peoples, as ‘racist law’, retrospectively annulled and rescinded any citizenship claims for this cohort of Samoans.84 While the Government declares Lesa to be a New Zealand citizen85, it prescribes ‘every person to whom this Act applies shall be deemed never to have been a New Zealand citizen.’86 Section 4 provides for who the Act applies to, with it mainly classifying anyone born on or after 13 May 1924 and before 1 January 1949 who was a British subject by virtue of being born in Western Samoa during this period.87 In recent times, this discriminatory immigration law has been criticised as being on par with the executive orders of former President Donald Trump to deny people entry into the United
80 Lesa v Attorney-General, above n 79, at 173 per Lord Diplock.
81 At 176-177, per Lord Diplock.
82 Restoring Citizenship Removed by Citizenship (Western Samoa) Act 1982 Bill 2023 (277-1) (explanatory note).
83 Teanau Tuiono "Time to strike anti-Pacific racism from New Zealand law" (4 August 2022) Green
Party Website
<https://www.greens.org.nz/time_to_strike_anti_pacific_racism_from_new_zealand_law>
84 Tuiono, above n 83.
85 The Citizenship (Western Samoa) Act 1982, s 5.
86 Section 6.
87 Section 4(1)(a)
States because of their country of origin.88 Lawyer and Blogger Graeme Edgeler claims ‘New Zealand’s treatment of Western Sāmoans went further – cancelling the citizenship of people legally entitled to it.’89 Most alarmingly, this racist piece of legislation still stands as law in Aotearoa New Zealand. In 2003 during the Clark-led Labour-majority Government, a petition was presented to Parliament with 90,000 signatories calling for a repeal of the statute.90 Many Samoans and supporters protested outside Parliament. However, it was to no avail.
Tuiono has proposed The Restoring Citizenship Removed by Citizenship (Western Samoa) Act 1982 Bill which would mean a Samoan whose New Zealand citizenship was removed by the 1982 Act would automatically have their citizenship restored, rather than having to go through the normal residency and citizenship application process.91 It would restore the right to citizenship that was promised to this community and found by the Privy Council to be owed to them. Tuiono’s Bill was found to be consistent with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990,92 and at the beginning of August 2023, it was selected from the ‘Biscuit Tin’, so change may be on the horizon.
The Western Samoa citizenship controversy provides evidence of the once precarious legal standing of Pacific peoples within Aotearoa. New Zealand’s colonial presence in the Pacific led to citizenship being granted to former colonies of the British Crown, however these citizenship rights have not always been upheld and respected. Karlo Mila compares this with Article 3 of te Tiriti which provided ‘one of the first statements about citizenship and equality’ for the nation.93 She points out that when you look at the statistical profile of Māori within the country, it is clear the promise of equal rights and privileges as British subjects has never fully come to fruition for Māori.94 In a similar fashion, she notes that ‘Pasifika peoples,
88 Graeme Edgeler "The Citizenship (Western Sāmoa) Act is New Zealand's most racist immigration law. Why is it still on the books?" (7 February 2017) <https://thespinoff.co.nz/society/07-02- 2017/the-citizenship-western-samoa-act-is-new-zealands-most-racist-immigration-law-why-is-it-still- on-the-books>
89 Edgeler, above n 88.
90 Ministry for Culture and Heritage “Privy Council rules on Samoan citizenship” (6 July 2020)
<https://nzhistory.govt.nz/privy-council-ruling-on-western-samoan-citizenship>
91 Tuiono, above n 83.
92 Letter from Jeff Orr (Chief Legal Counsel from the Office of Legal Counsel) to Hon David Parker (Attorney-General) regarding Consistency with the New Zealand Bill of Rights Act 1990: Restoring Citizenship Removed by Citizenship (Western Samoa) Act 1982 Bill (9 August 2023).
93 Mila, above n 71, at 98.
94 At 99.
as New Zealand citizens, have not yet experienced the full rights and privileges of equitable citizenship.’95
C) Immigration and the Dawn Raids
Throughout the colonial period Pacific migrants came to Aotearoa New Zealand, but it was not until after WWII in the 1950s that large-scale waves of migration began. This migration is the third entry-level way Pacific peoples’ formal relations in Aotearoa New Zealand can be understood. Migration was in part due to close links and familial ties as well as population pressures on some islands, however a huge contributing factor was economical motivations.96 Aotearoa was full of opportunities and migration was seen as opening new doors to jobs, education, better healthcare, and money to support villages and families back home in the islands. Migration was no easy feat and Pacific islanders faced many barriers (often due to cultural and language differences) upon their arrival to Aotearoa including ‘racism at personal, cultural and institutional levels’ and ‘inequities in incomes, health, education and employment’.97 Despite Pacific migrants coming from a range of diverse islands with their own cultures, they were grouped together as homogenous ‘Pacific Islanders’ and subsequently this new identity created by the Pālagi majority ‘contributed to their subsequent treatment by government agencies.’98 The Pacific population in New Zealand continued to grow with considerable migration. In many cases Pacific peoples were encouraged by the Government to migrate, in order to fill labour shortages.99 However, it was not long before relations between the Crown and the newly settled Pacific population in Aotearoa began to deteriorate.
The Immigration Act 1964, intended to update and consolidate the 1920 Act, came into force on the 1st of January 1965.100 It entrusted a significant amount of discretion and power with the Minister of Immigration. Section 14(1) gave the Minister the absolute power to refuse or permit entry into Aotearoa New Zealand by granting a temporary permit to any person who
95 Mila, above n 71, at 99.
96 Abuse in Care Royal Commission of Inquiry He Purapura Ora, he Māra Tipu From Redress to Puretumu Torowhānui (December 2021) at 1.2.
97 At 1.2.
98 At 1.2.
99 Mila, above n 71, at 100.
100 Immigration Act 1964, s 1.
was not a New Zealand citizen. Other sections also gave the Minister the power to extend permits,101 and exempt people from the application of the Act as they saw fit.102
The criteria for guiding the Minister’s discretionary decision-making was ‘derived from a policy that for many decades had favoured those races deemed most able to assimilate – to ‘fit in’ with New Zealand society.’103 Anae has described the Immigration Act 1964 as being the ‘first state-sanctioned act of racism’ as it was used to discriminatorily target Pacific peoples during the Dawn Raids.104 The Dawn Raids were a series of targeted immigration enforcement actions conducted by New Zealand authorities between 1974 and 1976. The raids aimed to identify and deport ‘overstayers’, with Pacific Island communities disproportionately targeted. The raids were aggressive in their nature, with early morning home invasions and checkpoints leading to widespread fear and trauma within Pacific Island communities.
Prior to their inception in 1974, the settler-colonial state in Aotearoa New Zealand actively encouraged Pacific peoples in the islands to migrate to Aotearoa New Zealand in order to fulfil labour shortages. With economic troubles at the forefront of the Government’s concerns and a high demand for labour, the enforcement of overstaying visas during this period was intentionally relaxed.105 Many of the Pacific migrants coming to Aotearoa were employed in low-paying manual labour such as factory work, assembly line production, shift work and other laborious jobs which many Pākehā New Zealanders did not want to do.106 In 1973, the oil crisis and economic recession saw politicians and the media seeking an easy scapegoat to point the finger at. As a result, Pacific migrants were unfairly blamed for rising unemployment and unrest, and negative stereotypes about ‘overstayers’ became mainstream.
101 Immigration Act 1964, s 14(4).
102 Section 32.
103 Anae The Platform, above n 41, at 94.
104 At 94.
105 Andrew Trlin “New Zealand’s Admission of Asians and Pacific Islanders” in James T. Fawcett and Benjamin V. Carino (eds) Pacific Bridges: The New Immigration from Asia and the Pacific Islands (New York Centre for Migration Studies, Staten Island, 1987) at 203-4; and see generally Ministry of Pacific Peoples “Dawn Raids Apology” (2021)
<https://www.mpp.govt.nz/programmes/dawn-raids-apology/>
106 Graeme Lay Pacific New Zealand (David Ling Publishing, Auckland, 1996) at 13.
In 1974, the Labour government under then Prime Minister Norman Kirk stopped the government’s relaxed visa approach and dawn raids began to happen more frequently under the Immigration Act 1964. An amendment made in 1968 to the Act allowed for those overstaying their work permits to be deported.107 The relevant statutory provisions, ss 5 and 33, which gave Police the power to subject ‘overstayers’ to deportation, were worded with seemingly neutral language, however the Act was used discriminatively from 1974 to target Pacific peoples.108 Evidence points towards a ‘race-based application of immigration policy’ achieved ‘through racial, ethnic, and colour-based profiling’ by Police.109 A change of government only fuelled the fire, with Robert Muldoon’s National Party election campaign going to extensive lengths to blame Pacific migrants as the sole reason for New Zealand’s socioeconomic troubles.110
While the terror of the Dawn Raids came to an official finish in 1977, the impacts of this period were significant and long-lasting for Pacific communities. Karlo Mila has argued that the period following the Dawn Raids led to a dramatic decrease in the standard of living conditions for Pacific peoples.111 The impacts were felt socially, economically and psychologically, and the settler-colonial state did little to support Pacific peoples. In fact, their hardships were only ‘exacerbated with neoliberal reforms introduced by the Labour Government’s Minister of Finance, Roger Douglas’.112 These reforms resulted in huge job losses, and in the space of a decade, the unemployment rate of Pacific peoples skyrocketed from 6% to 29%.113 Samoan Law lecturer and academic Dylan Asafo puts it bluntly; ‘the socioeconomic position of Pacific peoples has never recovered.’ Racist policing of Pacific communities still continues.114 Pacific peoples are far more likely to be subject to police violence in comparison to Pākehā.115 The legacy of the Dawn Raids can also be seen in disproportionate incarceration rates. Pacific peoples make up 11.6% of the total prison
107 Immigration Act 1964, s 33(a). For further commentary see Sharon Liava’a “Dawn Raids: When Pacific Islanders Were Forced to “Go Home”” (MA Thesis, University of Auckland, 1998) at 4.
108 Asafo, above n 3, at 90.
109 Ministry of Pacific Peoples, above n 105.
110 Melani Anae “All Power to the People: Overstayers, dawn raids and the Polynesian Panthers” in Sean Mallon, Kolokesa Mahina-Tuai and Damon Salesa (eds) Tangata o Le Moana: New Zealand and the People of the Pacific (Te Papa Press, Wellington, 2012) 221 at 228-232.
111 Karlo Mila “Only One Deck” in Max Rashbrooke (ed) Inequality: A New Zealand Crisis (Bridget Williams Books, Wellington, 2013) 91 at 96.
112 At 96.
113 At 96.
114 Asafo, above n 3, at 84 and 92.
115 New Zealand Police Tactical Options Annual Report #9 (December, 2020).
population,116 despite only constituting around 8% of Aotearoa New Zealand’s total population.117
On the 1st of August 2021, the Government issued a formal apology for the Dawn Raids. The apology involved former Prime Minister Rt Hon Jacinda Arden sitting underneath an ie toga (Samoan fine mat) before issuing a formal apology in her speech and addressing what tangible steps the Government was going to take. Arden began with a Māori, Tongan and Samoan address before talking about the discriminatory application of immigration laws in the 1970s and then offering the Government’s ‘formal and unreserved apology to Pacific communities’. 118 She said:
‘While these events took place almost 50 years ago, the legacy of the Dawn Raids era lives on today in Pacific communities. It remains vividly etched in the memory of those who were directly impacted; it lives on in the disruption of trust and faith in authorities; and it lives on in the unresolved grievances of Pacific communities that these events happened and that to this day they have gone unaddressed...Almost 50 years on from the Dawn Raids, the Pacific story continues to shift. This chapter sees a Pacific Aotearoa that is self-assured, thriving, prosperous and resilient.’119
While due credit should be given to Arden and her Government for even issuing an apology and taking part in an ifoga (Samoan ceremony of apology), this feels empty if dawn raid tactics continue.
A recent review released in July 2023 has urged the current government to consider banning the practice of dawn raids which are still in use, despite the apology.120 The review, commissioned by the Ministry of Business, Innovation and Employment, found that following the apology no change was made to the legislation or immigration policy to reform
116 Department of Corrections "Prison facts and statistics - June 2023" (June 2023).
117 Statistics New Zealand "2018 census ethnic group summaries - Pacific Peoples" (2018).
118 Jacinda Ardern, Former Prime Minister of New Zealand “Speech to Dawn Raids Apology” (Auckland Town Hall, New Zealand, 1 August 2021).
119 At ‘Apology Statement’.
120 Michael Heron A Review of processes and procedures around out of hours immigration compliance activity, and to identify and recommend potential changes to the process where required (Ministry of Business, Innovation and Employment, 29 June 2023).
the practice of dawn raids. The review states: ‘We agree with the Pasifika community that an apology for behaviour, aspects of which continue after the apology, does appear to ring hollow.’121 Furthermore, the Government’s apology has been criticised for failing to acknowledge that Pacific peoples and Māori still suffer racism and inequity at the hands of the police and criminal justice system.122
The 1970s Dawn Raids remain a disgraceful and dark chapter in our nation’s history. Characterized by systemic discrimination, racial profiling and human rights violations against Pacific communities, they remain an ever-present stain on the relationship between Pacific peoples and the settler government in Aotearoa New Zealand. The Dawn Raids left an indelible mark on Pacific communities, perpetuating a climate of discrimination and racism where Pasifika New Zealanders were made to feel ‘other’ and unwelcome within ‘mainstream’ (i.e. white) society.
D) Conclusion
As evidenced, Pacific relations within Aotearoa New Zealand are complex. Pacific relations with Māori predate colonial encounters, stretching back to ancient times of shared ancestors and cultures. The expansion of the Realm of New Zealand into the Pacific region, and large- scale migration of Pacific Islanders to our shores are two ways we can conceptualise Pacific peoples’ relationship with the New Zealand Crown. It is a relationship that has been strenuous at times, as seen in citizenship struggles and the racist implementation of immigration laws. The various relations of Pacific peoples in Aotearoa New Zealand serve as a backdrop for understanding Pacific peoples’ contributions to this country, how they relate to current constitutional arrangements, and thus how they may contribute and relate to constitutional transformation.
121 Heron, above n 120, at 118.
122 Asafo, above n 3, at 84.
Chapter III: Constitutions – Past, Present and Future
How does our current constitution provide for Māori and Pacific peoples, and why is change necessary?
O lupe sa vao ese’ese, ae ua fuifui faatasi123
We are from different parts of the forest but connected in one cause
Chesterton’s Fence poses a scenario in which you are walking along and come across a fence erected in the middle of nowhere that is blocking your path. This cautioning principle, coined by English author and journalist G. K. Chesterton, states that one should never destroy the fence without understanding why it is there in the first place. It creates a presumption that all fences have a purpose and were carefully planned, therefore equal consideration needs to be given to taking them down. Similarly, if we want to knock down our metaphorical fence and change our current constitution, we need to examine first what it encompasses, its rationale, and its shortcomings. In order to theorise what role Pacific peoples may play in such constitutional transformation, it is also necessary to identify where, how, or if the constitution provides for Pacific peoples currently. Within this third chapter I will first illustrate our current constitutional makeup in brief to set the scene, additionally touching on why we have this system and its faults. I will then examine how our constitution recognises the legal standing and place of Pacific peoples within Aotearoa New Zealand. Finally, I will discuss why our current constitution is disadvantageous for everyone, before turning to a Māori Constitutional Framework to begin envisioning a future that reflects Aotearoa as a Pacific Nation.
A) What is the New Zealand Constitution?
At its most basic level, a constitution can be understood as a set of governing rules that dictate how a State or government exercises public power for their people. In even simpler
123 This Sāmoan proverb also translates to ‘the doves were different, but they are clustered together’.
terms, a constitution can be understood as the way we make decisions and determine our own destiny.124 According to the Rt Hon Sir Kenneth Keith, a constitution is all about public power and how that power is distributed, established and regulated.125 While constitutions generally share similar characteristics, they are often tailored to each respective state.
The New Zealand constitution is unique in the fact that it is unwritten, not entrenched, and not supreme due to the doctrine of Parliamentary supremacy. There is no one single document which one can point to as ‘the Constitution’. Rather, we can see our constitution in a number of key legal documents and instruments, in the decisions of the Judiciary and our common law, in constitutional conventions, and in fundamental principles which dictate how our legal system functions, among other things.126 These components all reflect the fact that New Zealand is a constitutional monarchy where King Charles III is the Sovereign and thus Head of State. Despite being a constitutional monarchy, the principle of democracy is also key to our constitution, and is most notably reflected in our parliamentary system and mixed- member proportional voting system.
The Constitution Act 1986 is one of the primary legal documents which prescribes our constitutional arrangement.127 Within its four parts, it outlines the different functions and purposes of the respective branches of our government and legal system – a system that was first introduced by the New Zealand Constitution Act 1852 (UK) which established New Zealand’s system of government. Part 1 of the 1986 Act outlines the role of The Sovereign. In New Zealand, the Governor-General is appointed by The Sovereign and is thus their representative.128 The remaining parts provide a framework for the Executive, Legislature and the Judiciary and illustrate how our constitution functions in respect of each of these branches of government. The New Zealand Constitution also consists of the prerogative powers of the Sovereign, and other relevant statutes such as the Public Service Act 2020, the Electoral Act 1993, the New Zealand Bill of Rights Act 1990, the Senior Courts Act 2016, and the Public Finance Act 1989 among others. Due to our colonial history, important
124 Interview with Moana Jackson, convener of Matike Mai Aotearoa (Wallace Chapman, Sunday Morning, Radio New Zealand, 23 October 2016).
125 The Rt Hon Sir Kenneth J Keith "On the Constitution of New Zealand: An Introduction to the Foundations of the Current Form of Government" in Cabinet Office Cabinet Manual 2023 at 1. 126 At 1-2.
127 The Constitution Act 1986.
128 Section 2(2)
statutes from the United Kingdom also hold weight within our constitution such as Magna Carta 1297 and the British Bill of Rights 1688. Fundamental constitutional principles include the rule of law, the separation of powers, the doctrine of Parliamentary supremacy and the principle of legality, amongst others. Many of these key principles are said to run so deep within the fabric of our constitution that our courts will often draw upon them in deciding cases and interpreting legislation, which in turn cements their importance within New Zealand law.129
The Cabinet Manual, which serves as ‘the primary authority on the conduct of Cabinet government in New Zealand’, is also a part of our constitutional arrangement despite not holding any binding authority but rather operating as important guidance for Cabinet.130 The Manual sets out in detail the powers and roles of all facets of Government and covers how Cabinet functions, providing guidance for those working within public service spheres.
Notably, it also addresses the concept of constitutional change. While some aspects of our constitution are more ‘entrenched’ in nature (such as the voting age or three-year term of Parliament), it is acknowledged that:
‘...In theory, many parts of the constitution can be amended by legislation passed by a simple majority of the Members of Parliament. That power is, however, restrained by law, convention, practice, and public acceptance.’131
The manual recognises the ‘Treaty of Waitangi’ and its constitutional importance, whilst making sure to frame it in malleable terms which afford it no real element of compulsion. The Cabinet Manual states the Treaty of Waitangi (and not its te reo version) ‘may indicate limits in our polity on majority decision-making’ and that the law ‘sometimes accords a special recognition to Māori rights and interests’.132 While ostensibly recognition of the constitutional importance of the Treaty within the Cabinet Manual is a positive, it should also be noted that the Cabinet Manual states that the fact Māori never ceded sovereignty is a ‘view’ that is ‘not universally held’,133 despite the findings of Wai 1040.134
129 Legislation Design and Advisory Committee “Chapter 4: Fundamental constitutional principles and values of New Zealand law” in Legislation Guidelines (2021 Edition).
130 See the Foreword by the Rt Hon Chris Hipkins in Cabinet Office Cabinet Manual 2023.
131 Cabinet Office Cabinet Manual 2023, at 6.
132 At 2.
133 At 159.
134 See the Waitangi Tribunal He Whakaputanga me te Tiriti: The Declaration and the Treaty. The Report on Stage 1 of the Te Paparahi o Te Raki Inquiry (WAI 1040, 2014).
There are clear areas in which the Cabinet Manual could be improved in order to give greater effect to te Tiriti. A starting point would be acknowledgment of the rule of contra proferentem. Māori lawyer and academic Ani Mikaere (Ngāti Raukawa, Ngāti Porou) believes that:
‘raising the prominence of the English text is little short of mischievous when one considers the entirely peripheral role that it played in the signatories’ decisions to sign in 1840. While Williams and Busby must surely have been aware of the difference between the two texts, it seems extraordinary that we should today reward their deceit by paying the English text any attention whatsoever.’135
Te Tiriti o Waitangi is often regarded as the foundational treaty for our nation.136 Given this, the Cabinet Manual should recognise and uphold its status to a greater extent. The Manual proposes that the Treaty’s constitutional status will continue to evolve alongside other principles and norms of our constitution, rather than requiring Government to simply honour te Tiriti in its essence and explicit terms.137 While the Cabinet Manual’s wording remains somewhat weak and confused, other guiding documentation such as the 2021 Legislation Guidelines prescribe that legislation should be consistent with the principles of the Treaty of Waitangi, noting that ‘the Treaty is of vital constitutional importance’.138 However, fault can be found with these guidelines as well. The ‘principles’ of the Treaty, as articulated by then Cooke P in the Court of Appeal decision New Zealand Māori Council v Attorney-General (Lands),139 have been criticized as a watering-down of the actual substantive content of te Tiriti, and a further assumption and assertion of Crown Sovereignty.140
New Zealand’s current constitution sets up the framework for how our government functions and how the power of the State is exercised and regulated. It is unique in that we essentially inherited a system, modelled on the British Westminster system and underpinned by a
135 Ani Mikaere “The Treaty of Waitangi and Recognition of Tikanga Māori” in Michael Belgrave, Merata Kawharu and David Williams (eds) Waitangi Revisited: Perspectives on the Treaty of Waitangi (2nd ed, Oxford University Press, Auckland, 2005) at 340.
136 Margaret Mutu "Behind the smoke and mirrors of the Treaty of Waitangi claims settlement process
in New Zealand: no prospect for justice and reconciliation for Māori without constitutional transformation" (2018) 14(2) Journal of Global Ethics 208 at 209.
137 Cabinet Office, above n 131, at 155.
138 Legislation Design and Advisory Committee, above n 129, at 28.
139 New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 [Lands].
140 Asafo, above n 3, at 105.
colonial worldview, which was introduced and plastered over a sovereign Indigenous population with an already functioning constitutional system. New Zealand’s Constitutional Monarchy is a byproduct of colonisation, and thus shrouded in injustice and blatant denial of Māori sovereignty. Despite its current widespread acceptance as our way of life and governance, there is no denying its roots are in rotten earth. Dr Mike Ross (Ngāti Hauā) writes:
‘...building a society on a foundation of violence – whether that is physical, legislative or social – creates an underclass of people. This is the hidden shame of New Zealand’s founding which has affected the relationships between Māori and other New Zealanders ever since.’141
B) Place of Pasifika Within Our Current Constitution
Upon analysis, the New Zealand constitution is relatively silent on issues pertaining to Pacific peoples. There is no reference to Pacific peoples within The Cabinet Manual, Legislation Guidelines, or the Constitution Act 1986 despite the Realm of New Zealand including three Pacific islands. The creation of the Ministry for Pacific Peoples (MPP) in 1990 does provide for Pacific peoples to be considered within our public service (but its existence has recently been under political attack).142
Within our constitutional system, the Ministry has been tasked with advising the government on any issues or policies which may affect Pacific communities within Aotearoa New Zealand. Its focus is on improving outcomes for Pacific peoples by influencing public policy decisions and acting as the Crown’s principal advisor in this area. It should be noted that the New Zealand Government does do a lot of work within the wider Pacific region, offering financial aid and assistance during times of hardship such as the COVID-19 Pandemic and throughout the ongoing climate crisis. While the Government’s outreach to our Pacific neighbours is admirable, the formal and legal constitutional recognition of Pacific peoples living in Aotearoa New Zealand is sparse. While there is a Ministry, it is politically vulnerable and could be disestablished in the absence of constitutional legal protection of such advocacy for the rights of Pacific peoples in Aotearoa New Zealand.
141 Mike Ross "The Throat of Parata" in Bianca Elkington and others Imagining Decolonisation
(BWB Texts, Wellington, 2020) 21 at 30-31.
142 David Seymour “ACT would abolish the Ministry for Pacific Peoples” (press release, 17 August 2023).
The 2021 report of Bula Sautu from the Health Quality & Safety Commission in New Zealand found that while there is greater recognition of te Tiriti o Waitangi in health systems, there is still a silence on Pacific issues.143 The report contends that ‘our mainstream health care system is designed neither for nor with Pacific peoples and is failing to meet Pacific needs.’144 The report also recognised that a ‘strong, supported and resilient Pacific workforce is a foundational requirement for Pacific health equity.’145 It acknowledges that Pacific peoples are ‘significantly under-represented in almost all parts of the health workforce’, and as a result the workforce has not historically been representative of or responsive to Pacific needs and wellbeing.146 The findings within Bula Sautu can serve as a snapshot of Pacific representation within our constitution, systems of governance, and more generally facets of society. The report strongly concludes that ‘these inequities of quality of care and outcome represent a systemic failure of New Zealand citizen and human rights, and a national shame.’147
Based on the lack of regard for Pacific peoples within elements of our constitutional arrangement, it is clear that our constitution is also designed neither for nor with Pacific peoples in mind. This is perhaps to be expected; Pacific peoples do not have a formal relationship with the Crown in the same vein that Māori do by virtue of te Tiriti, neither are they indigenous to this country. However, Aotearoa is a nation within the Pacific region, and as Minister of Foreign Affairs Nanaia Mahuta outlines, ‘we have a significant Pasifika population who have chosen Aotearoa as their home – one in ten New Zealanders will identify as being of Pacific Island heritage by 2026.’148 While perhaps explicit reference to Pacific peoples within foundational constitutional documents such as the Constitution Act 1986 or guiding documentation such as the Cabinet Manual is not necessary, there may be value in having a constitution that is reflective of Pacific worldviews and the Pacific diaspora community within Aotearoa New Zealand.
143 Health Quality & Safety Commission New Zealand Bula Sautu- A window on quality 2021: Pacific health in the year of COVID-19 (July 2021).
144 At 7 and 99.
145 At 97.
146 At 97.
147 At 99.
148 Hon Nanaia Mahuta, Foreign Minister of New Zealand "Aotearoa New Zealand's Pacific Engagement: Partnering for Resilience" (speech to the New Zealand Institute of International Affairs, 3 November 2021).
C) Why Constitutional Legal Change is Necessary
I posit there are many shortcomings to our current constitutional arrangement. One of the very core issues is the inability of the constitutional doctrine of parliamentary supremacy to adhere to the promise of bicultural power sharing as established in te Tiriti o Waitangi.149 As such, our current system is a continual denial of the human right Māori hold as Indigenous peoples to self-determination. As outlined above, there is 1) weak recognition of te Tiriti and the Treaty of Waitangi within our constitution and 2) no recognition of Pacific peoples. This means there is an enormous opportunity and duty to continue to work on creating a constitutional framework that makes sense for Aotearoa as a Pacific nation.
I argue in the following discourse, that our current constitution is not only disadvantageous for Māori, but for Pacific peoples too, and all other Tangata Tiriti who have made Aotearoa New Zealand their home.
It is no longer radical to accept our current constitutional framework is inherently colonial and does not achieve Tiriti justice for Māori. At its essence, any system which digresses from the clear vision that te Tiriti o Waitangi prescribes is a denial of Māori sovereignty and a breach of the basic human right of all Indigenous peoples to self-determination.150 Professor Margaret Mutu (Ngāti Kahu, Te Rarawa, Ngāti Whātua) has stated it is explicitly clear that our ‘...Westminster constitutional system as implemented since 1840 does not and cannot give effect to te Tiriti o Waitangi...’151 The Westminster system wrestled power away from Māori, and ‘having decimated Māori through warfare and introduced diseases...’ the settler- Government ‘...imposed a regime of white supremacy in the name of the Crown.’152 This imposed regime was created without Māori consent and thus has left Māori constitutionally powerless.153
149 Jacinta Ruru and Jacobi Kohu-Morris “‘Maranga Ake Ai’ The Heroics of Constitutionalising te Tiriti O Waitangi/The Treaty of Waitangi in Aotearoa New Zealand” (2020) 48(4) FLR 556.
150 Moana Jackson, above n 1, at 136.
151 Margaret Mutu “Constitutional Transformation and the work of Matike Mai Aotearoa” (video presentation, 19 March 2022) te Tiriti-based Futures & Anti-racism online conference <Constitutional transformation and the work of Matike Mai Aotearoa>
152Mutu “Behind the smoke and mirrors”, above n 136, at 210.
153Mutu “Constitutional Transformation and the work of Matike Mai Aotearoa”, above n 151.
Reports such as Maranga Mai! provide evidence of the widespread and deeply damaging effects of colonisation and our current constitutional arrangement on Māori.154 This report, published in November 2022 by Te Kāhui Tika Tangata – The Human Rights Commission highlights that ‘since the signing of te Tiriti in 1840, Tangata Whenua have endured more than 180 years of colonisation, racism and white supremacy, often enforced by the rule of law, unjust legislation, and government sanctioned violence.’155 Colonisation is not a thing of the past, but rather an ongoing denial of Indigenous sovereignty and self-determination.156 As a result of ongoing inequity and state-sanctioned racism, Māori experience ‘the worst outcomes across all measures of wellbeing, including low levels of home ownership, high rates of poverty, unemployment and incarceration, and poorer education and health outcomes.’157
Māori have long been expressing understandable frustration and displeasure with our current constitution. Even international bodies and commentators can recognise what the New Zealand government consistently chooses to ignore or sweep under the carpet. Three United Nations Special Rapporteurs on Indigenous rights have issued respective reports over the past four decades which call for ‘the urgent need for New Zealand to bring an end to human rights violations against Māori...’158 Most notably, six years ago the United Nations Committee for the Elimination of Racial Discrimination made a point of reminding the New Zealand Government it owes a duty to Māori to recognise their fundamental right to self- determination.159 Furthermore, the Committee recommended State engagement with Māori in regard to constitutional transformation as a means of upholding Māori human rights and the
154 Te Kāhui Tika Tangata Human Rights Commision Maranga Mai!, above n 33.
155 At 11.
156 Jackson, above n 1, at 134.
157 Te Kāhui Tika Tangata Human Rights Commission Ki te whaiao, ki te ao Marama - Community Engagement Report for developing a National Action Plan Against Racism (November 2022) at 24. 158 Erica-Irene Daes Confidential Report by Professor Erica-Irene A Daes, Chairman-Rapporteur of the United Nations Working Group on Indigenous Populations, on Visit to New Zealand, 2-7 January, 1988 (1988, Athens); Rodolfo Stavenhagen Report of the Special Repporteur on the Situation of Human Rights and Fundamental Freedoms of Indigenous People. Mission to New Zealand (United Nations Human Rights Commission, 2006, Geneva); James Anaya Report of the Special Rapporteur on the rights of indigenous peoples, James Anaya. The Situation of Māori People in New Zealand (United Nations Human Rights Council, 2011).
159 United Nations Committee on the Elimination of Racial Discrimination Concluding Observations on the Combined Twenty-first and Twenty-second Periodic Reports of New Zealand (United Nations Human Rights Council, September 2017) at 13(c).
role of te Tiriti within constitutional arrangements.160 Tina Ngata (Ngāti Porou) speaks to the crux of why our constitution is disadvantageous for Māori, holding the staunch and powerful position that:
“We can’t overlook the fact that the government system we live with – the system which provides the policies that shape our lives and experiences – was born out of an intent to dispossess Māori...We are left with this government’s constitutional framework, which is an unavoidable source of institutional racism with deadly consequences for Māori. Just read the recommendations of the Maranga Mai report...The scientific data supports what we already know: that racism is an independent predictor of early, avoidable death for racialised minorities, including Māori. When we delay constitutional transformation, we are condemning those in te ao Māori to higher death rates and a raft of other social and economic outcomes that would never be acceptable for white populations.”161
In the same vein that Māori appear disproportionately in negative statistics across the board, Pacific peoples are also negatively represented within Aotearoa. An example of this can be seen within the health system. The report of Bula Sautu found that ‘our health care system has organised care in a way that is systematically and structurally racist to the detriment of Māori and Pacific health outcomes.’162 According to Statistics New Zealand and the Ministry of Pacific Island Affairs, Pacific youth living in Aotearoa New Zealand are twice as likely to take their own lives, and suffer from feelings of anxiety and depression.163 The statistical snapshot of Pacific Peoples within Aotearoa is objectively bleak in other areas such as housing, incarceration rates, employment, and education. Karlo Mila posits that the negative impact of colonisation on Māori set the scene for Pacific peoples, as colonisation was not only deeply damaging for Tangata Whenua but also all ethnic minorities. She writes that this relationship between the Crown and Māori ‘established the colonial context that pre-dated large-scale Pacific migration to New Zealand. The institutional relationship between Māori and the Crown set the scene for what was possible and probable for Pacific migrants.’164 It is
160 United Nations Committee, above n 159, at 12-13.
161 Tina Ngata "Tina Ngata: Performative gestures and permissiveness are derailing Tiriti justice" (12 Feb 2023) E-Tangata <https://e-tangata.co.nz/comment-and-analysis/tina-ngata-performative- gestures-and-permissiveness-are-derailing-tiriti-justice/>
162 Health Quality & Safety Commission New Zealand, above n 143, at 7.
163 Statistics and Ministry of Pacific Island Affairs Health and Pacific peoples in New Zealand - Pacific Progress (October 2011) at 13.
164 Mila, above n 71, at 98.
no wonder then that the current constitution does not serve Pacific peoples either. While the avenues of arrival were different for Pacific peoples and Māori, there are clear similarities in regard to their current socio-economic positions and statistical portfolios. The Human Rights Commission has recognised that the ongoing event of colonisation ‘continues to underpin the interpersonal and systemic racism that impacts Tangata Whenua and ethnic Tangata Tiriti.’165 It is evident that New Zealand’s current constitutional arrangement does not uplift nor do justice for our vibrant Pacific communities.
In her chapter, succinctly titled ‘Colonisation Sucks for Everyone’, Rebecca Kiddle (Ngāti Porou, Ngāpuhi) enquires into how colonisation has negatively impacted on non-Māori, particularly the Pākehā majority.166 Kiddle proposes it has led to a lack of Pākehā identity and unacknowledged Pākehā trauma.167 She writes that “...acting as colonisers – taking part in an often racist and inherently unfair process – is surely bad for the soul of Pākehā. Being brutal can’t be great for a person’s ongoing sense of self...’168 A study conducted in 2018 found our individual subjective wellbeing is partially determined by the wellbeing of the wider community, and therefore reducing and addressing inequality in wellbeing is likely to make New Zealanders feel much happier.169 It is therefore highly likely that non-Māori New Zealanders are also negatively impacted by the struggles Māori and Pacific peoples face at the hands of our current constitution.
Other ethnic-minority groups have also recognised the inherent injustice in our current constitutional arrangements. The work of ASTR and the ALN demonstrate a Tangata Tiriti disillusionment with our current constitution and a desire to make Aotearoa New Zealand a more equitable and inclusive country for all. In the same way that immigration law was applied discriminatorily against Pacific peoples, Asian communities have also been subject to racism at the hands of the New Zealand Government For example, Chinese people were often classified as ‘undesirable immigrants’ and were discouraged from becoming naturalised
165 Te Kāhui Tika Tangata Ki te whaiao, ki te ao Marama, above n 157, at 10.
166 Rebecca Kiddle "Colonisation Sucks for Everyone" in Bianca Elkington and others Imagining Decolonisation (BWB Texts, Wellington, 2020) 83.
167 At 84 and 88.
168 At 88.
169 Pascarn Dickenson “The Sensitivity of Wellbeing to Inequalities in Local Wellbeing” (MA Thesis, Victoria University Wellington, 2018).
citizens by a fee they were required to pay even after the condition was abolished for other non-Chinese applicants in the 1890s.170 Later legislation also provided for any alien to become a naturalised New Zealand citizen apart from a Chinese person.171 The experiences of Asian communities with the New Zealand Government historically provide background to Asian support for constitutional transformation. ASTR and ALN are evidence of how our current constitutional failings have led Tangata Tiriti communities to speak up and seek legal remedies for change.
Our constitutional framework was implemented in recognition of New Zealand being a colony of Britain, but it is unreflective of our original and re-emerging identity as a Pacific nation nor of any values which would strengthen the lives of all New Zealanders. A Māori constitutional framework (which prioritises tikanga and kawa) would focus on values which can be seen as uplifting for all individuals, rather than a rules-based system which prioritises sanctions and compliance instead of the health of the collective. Moana Jackson has said: ‘The statistics, and what we see, what we know, shows us that the Pākehā system isn’t working for us...maybe a Māori way will.’172 Given our constitution has not achieved justice for other ethnic-minorities such as our Asian and Pasifika communities, and likely fosters a sense of Pākehā guilt and trauma, perhaps a ‘Māori way’ will work for Tangata Tiriti too.
D) A Māori Constitutional Framework
What is most significant about the constitutional and political climate in Aotearoa New Zealand is that there was already a functioning constitution and system of governance/law in place prior to European arrival. While it may not have appeared as a constitution in terms of Western ideology, Māori had systems of constitutionalism. Moana Jackson elaborates, highlighting that ‘iwi and hapū were polities’ and ‘were constitutionally constructed and mandated political decision-making bodies just as those in Britain and France and so on develop their own constitutional systems out of their cultures and history.’173 Māori lawyer and academic Carwyn Jones (Ngāti Kahungunu, Te Aitanga-a-Māhaki) has written ‘the
170 The 1866 Aliens Act imposed a naturalisation fee of one pound. See generally David Green "Citizenship - Towards New Zealand citizenship" (8 February 2005) Te Ara - the Encyclopedia of New Zealand <http://www.TeAra.govt.nz/en/citizenship/page-2>
171 The British Nationality and New Zealand Citizenship Act 1948; and the Aliens Act 1948.
172 Moana Jackson He Whaipaanga Hou: Māori and the Criminal Justice System – A New Perspective
(Ministry of Justice, 1988) at 276.
173 Interview with Moana Jackson, above n 124.
continuity of a Māori constitutional tradition can be identified through the key institutions that structure the exercise of public power within te ao Māori (the Māori world).’174 He defines a ‘constitutional tradition’ as including not only ‘constitutional values but also the body of rules, norms, and practice that guide decisions about appropriate action and optimum constitutional design.’175 The Māori constitutional tradition derives from tikanga, which encompasses both Māori law and other rituals, customs and traditions that ‘go well beyond the legal domain.’176 Some of the foundational values of tikanga, and thus of the Māori constitutional framework, are whanaungatanga, manaakitanga and kaitiakitanga, mana, tapu and noa, and utu. Whanaungatanga is often seen as the glue holding this system together, with a significant emphasis placed on the centrality of relationships within Māori constitutional culture and practice.177 Jones contends that these core values and principles are instrumental to te ao Māori and thus ‘empower constitutional actors and regulate the exercise of public power.’178 These values are reflective of an integral element of te ao Māori which is the interconnected element of all living and spiritual things and the absolute importance of maintaining balance and harmony in everything.179 They are not the only thing that provide the framework for a Māori-centric Constitution however. Precedent also serves as an important source of Māori law. However, Jones does note that ‘the Māori legal system does not apply legal rules in the same way as the common law’s principle of stare decisis’, since precedent within Māori law focuses more on the values that should be followed in similar factual scenarios rather than the rules.180 It is suggested that precedent (arising out of stories of past behaviours, whakataukī and other oral traditions) establishes an ethical system in which decision-makers within this constitutional framework use their ‘good sense and mana...to arrive at reasonable solutions to their problems.’181 The key elements to the Māori Legal Order present us with an alternative constitutional arrangement which prioritises relationships, collective wellbeing over individual wellbeing, and values which are central to the way of life for Māori.
174 Carwyn Jones "A Maori constitutional tradition" (2014) 12(1) NZJPIL 187 at 187.
175 At 188.
176 At 189.
177 Williams, above n 23, at 4.
178 Jones, above n 174, at 190.
179 Mikaere, above n 135, at 332.
180 Jones, above n 174, at 193.
181 John Patterson Exploring Māori Values (Dunmore Press, Palmerston North, 1992) at 75.
E) Conclusion
The New Zealand Government is no stranger to the concept of constitutional transformation. Former Prime Minister Jacinda Arden even predicted constitutional transformation would happen in her lifetime, just unfortunately not in her Government.182 Commissioned reports like Maranga Mai! serve as evidence that the Government is aware of the shortcomings of our current system. The report was intended to inform the New Zealand Government and the Ministry of Justice, both of whom are committed to a National Action Plan Against Racism.183 From the aforementioned discourse, it is clear transformation is needed and furthermore that it can be beneficial for everyone. For Māori, this transformation is restorative but not necessarily revolutionary. A kuia from Waiora who was interviewed for the Matike Mai Aotearoa report summarises this, saying:
“I have waited for this kōrero all my life...I remember my old people talking about this. They never used words like constitution but they talked all the time about deciding for ourselves what is best for us, like we always used to...that wouldn’t be a new thing just taking back something really.”184
Te Tiriti o Waitangi sits at the core of our current constitutional framework. In order for te Tiriti to be honoured, colonisation must be settled.185 The report of Matike Mai Aotearoa, which goes into great detail as to why constitutional transformation is necessary and desirable, concludes that ‘settling’ colonisation is more than monetary compensation and Crown apologies; ‘it requires a transformative shift in thinking to properly establish the constitutional relationship that te Tiriti intended by restoring the authority that was once exercised through mana and rangatiratanga.’186
Colonisation has left us with poisoned earth. It has lingered and insinuated itself through our current constitution, despite the efforts of many to present a united front as ‘one people’ and sweep Tangata Whenua grievances out of sight. Not only has our current constitution proved disempowering for Māori and Pacific peoples, but it has surely fostered a deep-seated feeling
182 Ngata, above n 161.
183 Te Kāhui Tika Tangata Maranga Mai, above n 33, at 7.
184 Jackson and Mutu, above n 2, at 27.
185 Matthew Tukaki "Moana Jackson: 'I'm absolutely sure transformation is coming'" (3 April 2022) E-Tangata <https://e-tangata.co.nz/korero/moana-jackson-im-absolutely-sure-transformation-is- coming/>
186 Jackson and Mutu, above n 2, at 29.
of guilt and fear within those who tread on stolen land and try to grasp at illegally obtained power. As Moana Jackson so powerfully writes:
“These colonial stories may have helped explain the taking of power, but they could not give the colonisers the comfort of a place to stand. It was hard to feel at home when the descendants of those who had been killed were never far away and the smoke of the battlefield still lingered in the smoke of the forests that were being burned. In island stories, the intimacy of distance never lets memory entirely fade away.”187
187 Jackson, above n 1, at 149.
Chapter IV: Pacific Peoples in Constitutional Transformation
Where do Pacific peoples fit into indicative constitutional models, and what role do they play in supporting constitutional change?
It will require courageous wisdom to change, and some will say it is impossible and unrealistic.
But when the ancestors crossed Te Moana-nui-a-Kiwa, they overcame what seemed impossible
and realised that
courage is simply the deep breath you take before a new beginning.188
Moana Jackson
A) Introduction
Avenues such as legal pluralism may provide the illusion both of temporary relief from monoculturalism and advancement of Māori rights within our legal system. However, it is clear that constitutional transformation is an essential step to ‘whakatika or to make right even the most egregious wrong,’ such as the blatant denial of Māori sovereignty and failure to honour te Tiriti. 189 Moana Jackson has argued this step is relatively simple because ‘the Treaty set a blueprint for a constitutional relationship...constitutional transformation is really just about returning to the kind of relationship that te Tiriti o Waitangi originally envisaged.’190 Chapter IV draws on this blueprint, as prescribed within Matike Mai Aotearoa, to determine where Pacific peoples would fit within a new constitutional order, and what role Pacific peoples can play in advocating for constitutional transformation. First, the reports of Matike Mai Aotearoa and He Puapua will be briefly discussed. I will then explore Pacific peoples’ connection to te Tiriti, before looking at the nature of the tuākana-tēina relationship and how this might manifest within a Matike Mai constitutional model. Finally, Chapter IV will also outline possible roles Pacific peoples may play in constitutional transformation.
188 Jackson, above n 1, at 150.
189 At 149.
190Tukaki, above n 185.
B) Matike Mai Aotearoa and He Puapua
The Matike Mai Aotearoa Report, spearheaded by Moana Jackson and Margaret Mutu, sought to develop an inclusive constitution ‘based on tikanga and kawa, He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835, te Tiriti o Waitangi of 1840, and other indigenous human rights instruments which enjoy a wide degree of international recognition’.191 It contains the findings from over 250 hui across Aotearoa. The Working Group’s desire to come up with a new constitution, rather than adapt our current constitution, recognises the fact that rangatiratanga and our current Westminster system are incompatible, therefore any form of assimilation or attempts at integration are inadequate. The report provides six indicative constitutional models which propose different spheres of influence,192 allowing for ‘both the independent exercise of rangatiratanga and kāwanatanga and the expectation that there would also be an interdependent sphere where they might make joint decisions.’193 Within Matike Mai Aotearoa some attention was also given to the ancient whakapapa relationship between Māori and Pacific peoples when talking about constitutional transformation.194 In order to propose an inclusive constitution, Pasifika community groups were met with in Auckland while the report was being written.195 According to the report, many participants identified that this ancient whakapapa relationship was an important consideration when discussing a new constitutional order.196
He Puapua is a report commissioned by the New Zealand Government in 2019 with the goal of creating a plan to realise the United Nations’ Declaration on the Rights of Indigenous Peoples (UNDRIP).197 He Puapua adopted the ‘spheres of authority’ from Matike Mai Aotearoa as well as its declaration to realise rangatiratanga Māori by 2040. He Puapua also questions the Crown’s assumption of sovereignty, criticising common law doctrines such as the doctrine of discovery and terra nullius as avenues for the Crown’s claim of exclusive power and ownership.198
191Jackson and Mutu, above n 2, at 7.
192 At 10.
193 At 9.
194 At 19.
195 At 20.
196 At 75.
197 Cabinet’s Declaration Working Group He Puapua: Report of the Working Group on a Plan to Realise the UN Declaration on the Rights of Indigenous Peoples in Aotearoa/New Zealand (1 November 2019).
198 Cabinet’s Declaration Working Group He Puapua, above n 197, at 10.
C) Pacific peoples’ Connection to Te Tiriti
Moana Jackson has noted that ‘one of the worst things that colonisation did to our people was make us forget that we are Pacific peoples. So for generations ‘Pacific Islanders’ did not include Māori...so that created division where history and whakapapa had once bound us together.’199 As well as creating divisions between Pacific peoples and Māori, Dylan Asafo has voiced the opinion that ‘one of the unfortunate, if not tragic, manifestations of these tensions is the general lack of understanding amongst Pacific peoples of our place within Aotearoa New Zealand and te Tiriti.’200 Melani Anae contends ‘there is a sense in which the Treaty of Waitangi has formally very little to do with Pacific peoples.’201 Anae shares the opinion of many others that it is time more Pacific people took an interest in the Treaty as the authority for legitimate migrant presence in Aotearoa New Zealand (despite the relationship between Pacific peoples and Māori predating the signing of te Tiriti in 1840). It is imperative for Pacific peoples in Aotearoa New Zealand to work towards a clearer understanding of te Tiriti, and consequently a deeper understanding of our place within Aotearoa and a Tiriti- based future.202
The intricacies of the tuākana-tēina relationship can be difficult for Western thought systems to comprehend and accommodate. But the special relationship between Tangata Moana and Tangata Whenua has and always will be present. Considering this shared ancient whakapapa, there is still a lot that needs to be examined. Where do Pacific peoples weave into the fabric of te Tiriti? Is the tuākana and tēina relationship, as well as Pacific peoples classifying as Tangata Tiriti and Tangata Moana, something that should be taken into consideration when envisioning new constitutional makeups?
199 Moana Jackson “A kōrero with Moana Jackson – te Tiriti Based Futures” (Webinar, 21 March 2020) YouTube – te Tiriti Based Futures & Anti-Racism <https://youtu.be/XPb6mpYIZos>
200 Asafo, above n 3, at 88.
201 Anae, above n 26.
202 Asafo, above n 3, at 88.
D) Where Do Pacific Peoples Fit Within a Matike Mai Constitution?
There is more work to be done to figure out who would be governed under what sphere within the Matike Mai indicative models, and whether non-Māori can opt in to Māori-led services. Moana Jackson has acknowledged this is something that will come with time, noting it has taken us 160 years to even get to the point where we are even able to have conversations about changing our constitution in the first place.203
When looking at the indicative models for constitutional transformation outlined in He Puapua and Matike Mai Aotearoa, Pacific peoples appear to be governed under the kāwanatanga sphere as Tauiwi. However, Dylan Asafo has argued that:
‘Pacific peoples should be positioned as Tangata Moana within te Tiriti. In my view, this distinct positioning means that Pacific peoples placed within a Tiriti-based model can potentially be under all three spheres.’204
Tangata Moana being governed under the rangatiratanga sphere would uphold the vā between Māori and Pacific peoples, recognise the importance of the tuākana-tēina relationship, and allow for Tangata Moana as Tauiwi to respect the tikanga/kawa of Aotearoa New Zealand. In the same vein, this reciprocal relationship would manifest if for example Māori were visiting Samoa. Samoans would be considered ‘Tangata Whenua’ and therefore take on that role which encompasses taking care of the spiritual, cultural and welfare needs of the whanaunga who are visiting. When Māori visit, or even live in Samoa, they follow the governance of Samoans. In terms of Pacific peoples being governed under the rangatiratanga sphere, Asafo makes sure to preface that:
‘...Pacific peoples cannot and should not ever exercise tino rangatiratanga in the rangatiratanga sphere, unless of course a person is of both Māori and Pacific descent. Tino rangatiratanga can only be exercised by Māori as te Tiriti affirms. However, I suggest that Pacific peoples’ shared whakapapa with Māori and our experiences of marginalization under the Crown’s settler-colonial state follow that Pacific peoples’ liberation and joy in Aotearoa New Zealand can be better achieved under the governance of our Māori whanaunga, who are best placed to take care of us compared
203 Interview with Moana Jackson, above n 124.
204 Asafo, above n 3, at 100.
to the Crown under the kāwanatanga sphere or even under the relational sphere the Crown will govern with Māori.’205
This view is representative of the fact that we know, as previously discussed, that the Crown has not always held Pacific peoples’ best interests at heart. Pacific values, cultures and worldviews align more closely with those held by Tangata Whenua, thus it makes sense that many Pacific Peoples’ would prefer to operate within a tino rangatiratanga constitutional order. It is vital to acknowledge however that this possibility of Pacific peoples being governed under the tino rangatiratanga sphere can only happen with Māori consent and invitation. Considering tino rangatiratanga focuses on Māori sovereignty for Māori, it may be considered by Māori and Pacific peoples as well that it is ‘more appropriate’ for Pacific peoples ‘to be governed under either the relational or kāwanatanga spheres, or possibly both.’206
While historically the Crown’s governance has not always been beneficial for Pacific communities, Asafo argues that this may not be the case in a new constitutional order where Pacific peoples may be governed under the kāwanatanga sphere or the relational sphere ‘if they are designed, built and operated equitably.’207 Pacific peoples’ status as Tangata Moana and the importance of tuākana-tēina relationship is not necessarily undermined by placing Pacific peoples within these spheres, as these relationships can still be nurtured. It could also establish an important boundary that actually strengthens the Māori-Pacific vā,208 and provides opportunities for Pacific peoples to support tino rangatiratanga without co-opting it. As Asafo has written:
‘Pacific peoples must understand that our distinct status as Tangata Moana within te Tiriti does not follow that we can co-opt Māori rangatiratanga or appropriate Māori efforts to honour te Tiriti in order to try to advance interests that are not in line with the aspirations of our Māori whanaunga...I also posit that this understanding allows us as Pacific peoples to uphold and nurture one of the core cultural cornerstones of many Pacific communities, the vā (the relational space).’209
205 Asafo, above n 3, at 100.
206 At 100.
207 At 100.
208 At 100.
209At 89.
The intricacies of the relational sphere are complex and there are many practical matters that will need to be the subject of future deliberation. The matter can be further complicated when considering how many Māori people also have Pacific ancestry, especially for those within the Pacific diaspora who see Aotearoa New Zealand as their home. As Asafo says, ‘...the place of Pacific peoples within a Tiriti-based constitution is a vital matter for future discussions among Pacific peoples, our Māori whanaunga and other Tauiwi where appropriate.’210
I posit that regardless of what sphere Pacific peoples fall under, future discussions should consider what is the best place within a new constitutional model for Pacific peoples to be able to nurture the tuākana-tēina relationship and the vā. If Māori were to invite Pacific peoples into the rangatiratanga sphere with them, then this ancient whakapapa connection and vā would likely guide the relationship. If Pacific peoples were to sit with other Tangata Tiriti under the kāwanatanga sphere or relational sphere however, there is no reason why these concepts cannot still operate to the benefit of all.
Under a new constitution that upholds the tuākana-tēina relationship and recognises the values of Pacific peoples, events such as the Dawn Raids and the racist stripping of citizenship for some Samoans would be a thing of the past. By nurturing this relationship and vā we can provide Pacific peoples with greater security and human rights, unleashing untapped potential within our communities.
E) What Role Could Pacific Peoples Play in the Process of Achieving Constitutional Transformation?
The first thing Pacific peoples can do is take more of a legal interest in te Tiriti. As discussed above, there has historically been little connection between Pacific communities and te Tiriti o Waitangi. The ASTR serves as an example of a Tauiwi community educating themselves to be the best possible allies to Māori, and the ALN provide precedent of how Tangata Tiriti are
210 Asafo, above n 3, at 100.
engaging with these legal issues. The ALN have created a Constitutional Transformation Work Stream that attends legal conferences discussing constitutional change, and has also established a strategic plan to advance Māori aspirations for transformation.211 Their work also includes making submissions that centre the importance of te Tiriti o Waitangi. A recent submission, on the Independent Review Panel’s Discussion Document for the New Zealand Law Society, spoke to the importance of te Tiriti, stating ‘te Tiriti matters to Tauiwi, particularly for migrant communities, as well as for lawyers and the legal profession.’212 The submission elaborates upon this point holding that because te Tiriti is a foundational constitutional document and establishes the right of the Crown to kāwanatanga, it legitimises the presence of Crown courts and laws and therefore is ‘...foundational to the existence and legitimacy of lawyers to practise in Aotearoa New Zealand.’213 The ALN talk about te Tiriti rights and subsequent obligations for Tauiwi, especially those in the legal profession.214
Tangata Moana can learn from the work Asian Tauiwi communities are undertaking and position themselves in similar ways to best support and nurture the tuākana-tēina relationship, both legally, drawing inspiration from the ALN, and also politically. Pacific peoples within the legal profession have further obligations to advocate for a legal workforce and constitution that is grounded in te Tiriti. Once Pacific communities gain a greater understanding of and connection to te Tiriti, dreaming of constitutional transformation is a logical next step. Deeper understanding of te Tiriti naturally gives way to conceptualising the ‘blueprint’ for constitutional relationships that te Tiriti provides for. Tina Ngata summarises what this role of solidarity must look like:
‘Tangata Tiriti must underpin their support of Tiriti justice by centring the importance of constitutional transformation. You can’t pretend to be an ally while tolerating a system that disproportionately kills those you purport to be an ally to. We all have to be unrelenting and uncompromising in our pursuit of constitutional transformation. We must no longer accept, or enable, performative gestures that distract us from this goal.’215
211 Asian Legal Network “Constitutional Transformation Work Stream Retreat and Constitutional Kōrero” (14 December 2022) Asian Legal Network
<https://www.asianlegalnetwork.org.nz/news/constitutional-transformation-work-stream-retreat-and- constitutional-krero-737c4>
212 Asian Legal Network “Submission on the NZLS Independent Review” (9 September 2022) at [10].
213 At [11].
214 At [12].
215 Ngata, above n 161.
Being a good legal ally looks like supporting Māori aspirations. These can be extracted from documents like He Puapua, Maranga Mai! and Matike Mai Aotearoa, and all of which include recommendations for change. They call on our Government to rescind the Doctrine of Discovery, establish a Truth, Reconciliation and Justice Commission, appoint a permanent Indigenous Rights Commissioner and undertake legislation and policy reform that is Tiriti- centred amongst other things. Most importantly, they all commit to the 2040 Vision for constitutional transformation. It is vital that Pacific peoples are educated and know what Māori aspirations are, in order to best serve our Māori whanaunga as allies. Those purporting to be allies must also be aware of the balance between advocating for advancement of Māori interests, but also respecting that tino rangatiratanga can only be exercised and strengthened by Māori.216 At the same time, Asafo writes, ‘care must be taken to ensure that the burden of labour for Tiriti-based constitutional transformation is not placed solely on Māori...’217 Tauiwi have a role to play in honouring te Tiriti which often calls for them to share this burden of labour in ways that are deemed appropriate and meaningful by Tangata Whenua.
For Pacific peoples, as discussed, this role manifests in our ability to continue standing in solidarity with Māori struggles and upholding the vā between Māori and Pasifika communities. Many legal Pacific academics are already navigating these spaces and providing conduits for more Pasifika engagement with legal issues such as constitutional transformation. Dr Mele Tupou Vaitohi is the research lead for the Pasifika Legal Education Research Hub which released a report in December 2022 which looked at improving Pasifika Legal Education in Aotearoa New Zealand.218 The project aims to increase the number of Pasifika students who enrol in law schools, graduate, and become top lawyers and judges.
Their work is significant because improving Pasifika legal education leads to a more diverse legal profession able to draw on the ancient whakapapa relationship when pursuing constitutional transformation.
216 Te Kāhui Tika Tangata Maranga Mai!, above n 33, at 17.
217 Asafo, above n 3, at 109.
218 Mele Tupou-Vaitohi and Wiliame Gucake Fofola na ibe – Improving Pasifika Legal Education in Aotearoa Report on Talanoa Research Findings and Recommendations (Victoria University of Wellington, 1 December 2022).
Kaitlin Abbott, among others, has proposed that the tuākana-tēina relationship is of utmost importance when thinking about how Pacific peoples weave into the fabric of te Tiriti and the nation of Aotearoa:
‘Utilising tuākana-tēina also acknowledges the importance of the relationship in
Aotearoa contexts. Operating within a tuākana-tēina model means we are nurturing or tending to the vā between us as well. I therefore suggest that the tuākana-tēina method of relationality between Māori and Pacific Tauiwi is a valuable strategy for te Tiriti engagement, for decentring the New Zealand nation state in our relationships, and for nurturing our whakapapa connections and responsibilities to one another.’219
Former Minister of Pacific Peoples, Hon Aupito William Sio, previously talked about his desire to formalise this relationship in a covenant.220 While the details of how this would be structured are yet to be fully fleshed out, Sio gave examples of what this could look like. On one hand, it may consist of a written document outlining how Māori and Pacific communities can work together, share resources and collaborate more at both government and grass root levels. In a broader sense, it could look like cementing this close relationship by supporting one another’s kaupapa, engaging with and raising the profile of issues affecting each other.
The Ministry of Pacific Peoples has repeatedly recognised the importance of the tuākana- tēina relationship. In a recent Pacific Languages strategy report published in August 2022, the Ministry made sure to acknowledge its connection to te Tiriti and the unique relationship that sees Māori and Pacific communities ‘united as tangata o te Moana-nui-ā-Kiwa.’221 They note: ‘the whakapapa (tuakana-teina) relationship helps illustrate our shared ancestry – what binds us, rather than what separates us – both within our communities and beyond.’222 Formalising this relationship in a covenant would aid in cementing this ancient whakapapa connection and the rights and responsibilities that come with it. It could provide guidelines for Pacific communities to ensure they are honouring the vā.
219 Abbott, above n 11, at 30.
220 Interview with Aupito William Sio, above n 37.
221 Ministry for Pacific Peoples Pacific Languages Strategy Aotearoa New Zealand (August 2022) at 16.
222 At 16.
Conclusion
The call ‘Tangata Moana for Tino Rangatiratanga’ highlights the role that Pacific peoples can play in constitutional transformation. It is a role that draws its foundations from the ancient shared whakapapa relationship, and focuses on the need for solidarity with Māori.
Pacific peoples’ negative historical experiences with the New Zealand Government and a recognition that our current constitution fails to recognise, protect and unleash the potential of Pacific peoples supports the need for change. A values-based constitution, as proposed in Matike Mai Aotearoa, could also be beneficial for all Tauiwi who call Aotearoa New Zealand their home.
Exactly where Pacific peoples will fit within new indicative constitutional models requires more refinement. If transformation is accomplished in a way that asserts the identity of Aotearoa as a Pacific nation and draws on the wealth of diversity within our country, there is every possibility Pacific peoples will be diligently cared for and governed within the kāwanatanga sphere. There would still be the opportunity for Pacific peoples to engage with Māori within an interdependent sphere. Alternatively, if invited, Pacific peoples could opt-in to Māori led services in the tino rangatiratanga sphere, paying homage to the shared histories and worldviews and recognising that Pacific Tauiwi should abide by the tikanga/kawa of those whose lands they reside upon. The intricacies of this are something that can be delved into in greater detail in the future.
The role of Pacific peoples within constitutional change is thus one of solidarity and advancement of Māori interests. This can be achieved by Pacific communities engaging in te Tiriti education, learning about constitutional transformation, and being unwavering in their vision for change. Utilising the tuākana-tēina relationship, and honouring the sacred vā arising from this ancient whakapapa bond is crucial. There is already significant work being done by Tauiwi in these areas, notably within ASTR, that Pacific peoples can draw inspiration from. A key member of ASTR, Mengzhu Fu, talks of Moana Jackson’s vision for constitutional transformation and how there can be ‘no compromising on that vision.’223 They write of the promise they made to Moana Jackson at his tangihanga:
223 Mengzhu Fu "Being part of Moana's legacy" (16 April 2022) E-Tangata <https://e- tangata.co.nz/reflections/being-part-of-moanas-legacy/>
‘We will continue to support Māori sovereignty, to work together to eliminate colonialism and racism, to struggle without end, so that one day, your dreams will become reality for the generations to come.’224
It is time more Pacific communities engage with and join this struggle if we are to realise the 2040 Vision. Within our Pacific communities residing in Aotearoa New Zealand there is great brilliance, mana, and innovation. Knowledge is power, and armed with the knowledge of our current constitutional failings and proposals for change, Pacific communities can continue to join these constitutional conversations and advocate for transformation.
224 Fu, above n 223.
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I Dissertations and Unpublished Papers
Kaitlin Abbott "Tuākana/Tēina: Relational Responsibilities of Pacific Tauiwi to Māori and te Tiriti o Waitangi" (MA Thesis, Te Herenga Waka - Victoria University of Wellington, 2022).
Jade Aikman "Terra in our Mist: A Tūhoe Narrative of Indigenous Sovereignty and State Violence" (PhD thesis, Australian National University, 2019).
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J Interviews, Speeches and Press Releases
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Koro Vaka'uta "Where do Pasifika fit in the Treaty of Waitangi?" (6 February 2020) RNZ
<https://www.rnz.co.nz/international/pacific-news/408963/where-do-pasifika-fit-in-the- treaty-of-waitangi>
Koro Vaka'uta "Māori-Pasifika: Generation B emerging in Aotearoa" (8 February 2021) RNZ
<https://www.rnz.co.nz/international/pacific-news/435907/maori-pasifika-generation-b- emerging-in-aotearoa>
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