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Tikanga Māori in the Law and the Māori- Crown Relationship TE WAKA TURE: POST WAITANGI REFLECTIONS February 2019 Erratum

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Tikanga Māori in the Law and the Māori- Crown Relationship TE WAKA TURE: POST WAITANGI REFLECTIONS February 2019 Erratum Tikanga Māori in the law and the Māori- Crown relationship TE WAKA TURE: POST WAITANGI REFLECTIONS February 2019 Erratum Page 2 – this report has been updated electronically on 27 February 2019 due to an editing error. Contents Reflections on Waitangi Day ............................................................................................. 1 Tikanga Māori – a lever for cultural assertion ............................................................. 2 Ngāti Whātua Ōrākei – implications for Crown engagement .................................. 5 Te Arawhiti – The Office for Māori-Crown Relations ................................................. 5 The next generation ........................................................................................................... 6 Glossary of te reo Māori terms ........................................................................................ 8 Large Law Firm of the Year NZ Law Awards 2018 Deal Team of the Year (>100 lawyers) NZ Law Awards 2018 NZ Law Firm of the Year Chambers Asia Pacific Awards 2018 Most Innovative National Law Firm (NZ) IFLR Asia Awards 2018 Reflections on Waitangi Day Waitangi Day creates an opportunity each year to take Me wehi ki a Io-Matua-Kore e stock of how the Articles of Te Tiriti o Waitangi are noho nei ki te toi o ngā rangi. being reflected, or not, in present day Aotearoa, and Me wehi hoki ki a Rangi e tārewa nei, ki a Papa e takoto nei. what is happening in the Māori-Crown relationship. Below are our reflections on these themes in 2019. E kore e wareware i a tātau ngā mate kua riro atu rā ki te Had there been one Te Tiriti o Māori understood that they pōhorotaniwha. Ā, ko ō rātou Waitangi (the te reo Māori text), were giving the British Crown wairua ki a Rangi, ko tātau wā rātou waihōtanga iho ki a Papa. and had it been taken seriously, “kāwanatanga”, the right to New Zealand might have been a govern, but the English version Ki ngā whakakanohi maunga, happier and healthier country than refers to “sovereignty”, the ngā whakakiko whakapapa, ngā it is now. Māori equivalent of which is “tino mana whenua o tēnā, o tēnā o rangatiratanga” – an entirely tātau, anei rā te kupu whakamihi But differences between the different concept. e rere kau ana, e rere kau ana. Māori and English versions meant that there were in effect Kāwanatanga is a transliteration Ko Te Waka Ture e mihi nei i two treaties and that a contract of the word “governance”. tēnei wāhanga o te tau. Tērā ko which was meant to forge a bond Sovereignty implies a transfer Huitanguru, ko Rūhī-te-rangi, has at times become a source of of authority, or cession – which is e rewa ake nei i runga rā hei contention, frustration and bad exactly what Governor Hobson tāwharautanga mō tātou i tēnei faith on behalf of the Crown. proclaimed in May 1840, and the wā e patu tonu mai ana a Rēhua. integration of Ngāi Pākehā and This was exacerbated by the Ngāi Māori began. Ana, kua rewa ake anō tēnei New Zealand Company’s and pūrongo mō te rā o Waitangi hei the Courts’ perception of, and The tragedy is that, had the pānui ake mā koutou. attitude towards, engagement between Māori E te iwi, me whatu the Treaty - and the Crown proceeded on a hōmiro mai! that it was kāwanatanga basis, had Te Tiriti a legal secured tribal rangatiratanga “nullity”. and Māori land ownership, had Te Tiriti been treated as a founding document of Aotearoa and not as a legal “nullity”, had the New Zealand Company not seen it as “a praiseworthy device for amusing and pacifying savages for the moment”, the impact of colonisation on Māori would, without doubt, have been less devastating. We can’t rewrite history but we can address its present day legacy. 1 What is the way forward Tikanga Māori – a lever for Aotearoa? for cultural assertion In this paper, we • trace the growing recognition of tikanga Māori in the law Tikanga Māori is establishing a • explore what the Ngāti Whātua meaningful place in New Zealand Ōrākei Supreme Court decision means law and is providing a powerful lever for Crown engagement to assert Māori cultural values. • assess the importance of Te Arawhiti (the new Office for Māori-Crown Statutory recognition began in the early 1990s Relations), and with the Resource Management Act 1991, Te Ture • propose a child-focused approach to Whenua Māori Act 1993 and the Treaty settlement improve outcomes for Māori. Acts. And the associated concepts of mana tamaiti, whakapapa and whanaungatanga will be introduced by amendment to the Oranga Tamariki Act 1989 in July this year. Tikanga Māori now recognised and promoted in the Courts The first confirmation that tikanga Māori is part of New Zealand’s common law was in 2013 in Takamore v Clarke – a case involving the burial of a Tūhoe man in accordance with the tikanga of Tūhoe. It was also reflected last year in Ngāti Whātua Ōrākei v Attorney-General where the Supreme Court refused to strike out an application by Ngāti Whātua Ōrākei for declaratory relief as to its rights and interests in central Tāmaki Makaurau. Ngāti Whātua Ōrākei argued that the transfer to Marutūāhu and Ngāti Paoa of Crown-owned properties in respect of which Ngāti Whātua Ōrākei claimed mana whenua was: • contrary to tikanga Māori, and • a breach of the Treaty settlement already entered into between Ngāti Whātua Ōrākei and the Crown. Tikanga Māori in the law and the Māori-Crown relationship TE WAKA TURE: POST WAITANGI REFLECTIONS 2 February 2019 The potential implications of this decision are We expect this trend to continue and for tikanga significant. We discuss them next. Māori to become more integrated into the statute books and into the decisions of the Courts. It will More recently, the Supreme Court held in Ngāi Tai ki mean that public actors making public decisions will Tāmaki Tribal Trust v Minister of Conservation that a need to consider tikanga-based interests and will, degree of preference to Māori and to Māori economic over time, lead us closer to the cultural partnership interests is consistent with – and perhaps even that the Treaty intended. required by – the Treaty. Canada is further down the track. In Restoule v. The Court ordered the Department of Conservation Canada, the Ontario Superior Court of Justice ruled (DoC) to reconsider concessions it had granted that proper analysis of Treaties entered into between to Fullers Group Limited and Motutapu Island First Nations and the Crown must have regard to the Restoration Trust for their respective commercial indigenous perspective – in this case, the concepts tour operations on Rangitoto and Motutapu. of respect, responsibility, reciprocity and renewal as manifested in Anishinaabe stories, governance The basis for the order was that the application may structures and political relationships. not have been allowed had DoC given appropriate consideration to factors of mana whenua exercised by Ngāi Tai ki Tāmaki over the islands. It will mean that public actors making public decisions will “need to consider tikanga-based interests and will, over time, lead us closer to the cultural partnership that the Treaty intended.” 3 Ngāti Whātua Ōrākei – implications for Crown engagement This case is potentially transformative in the influence it could have on Māori-Crown engagement. Settled groups Freshwater rights The Supreme Court’s recognition of rights arising Following their win in the Supreme Court, Ngāti from settlement deeds, settlement legislation and Whātua Ōrākei must now apply for relief in the High at common law may have the effect of making those Court, which will require proving that they have mana rights enforceable by Māori against the Crown, whenua over the land in dispute. including an obligation to respect ahi kā and mana whenua of iwi and hapū. This could extend to areas Should they succeed in establishing this argument, it of central and local government decision-making – would reinforce the status of tikanga Māori in the law as evidenced in the Ngāi Tai ki Tāmaki Tribal Trust v and could open the door to: Minister of Conservation decision. • the Courts and Parliament formally recognising Overlapping claims policy and Treaty Māori rights and interests in freshwater in settlements more generally accordance with tikanga Māori Chief Justice Elias noted in Ngāti Whātua Ōrākei v • the Crown engaging in takutai moana applications Attorney-General that the Court had not heard “any with the relative interests of iwi and hapū, justification of the reasonableness of [the Crown’s] particularly those who hold primary interests in published general policy on overlapping claims”. the takutai moana as ahi kā or mana whenua, and She then went on to suggest that this policy may be • more diligent performance by local authorities of vulnerable to judicial review “as indeed may be the their obligations under the Resource Management case with the wider system of settlements conducted Act 1991 to recognise Māori culture, traditions by the Office of Treaty Settlements”. and kaitiakitanga. Te Arawhiti – The Office for Māori-Crown Relations The establishment of Te Arawhiti deserves an But good intentions are not sufficient in themselves. appreciative nod. It is tasked with supporting the They need to be supported by political will and by Crown to act fairly as a Treaty partner and the remit it appropriate resources. We will watch Te Arawhiti’s has been given signals a definite and progressive shift progress with interest. in the Crown’s approach. 5 The next generation The evidence of the Treaty’s failure to deliver to Māori is everywhere – Māori are 15.2% of the population but Māori disproportionately 51% of prison inmates; 68.3% of children under the represented care of the Oranga Tamariki Act 1989, and 80.3% of the rangatahi in Youth Justice residences. As Children’s Commissioner Andrew Becroft tweeted on Waitangi Day: “179 years ago, a contract was signed. It was broken OF and continues to be broken.
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