The role of Tikanga Maori in New Zealand Law and policy

Murphy Building, Victoria University;
‘Maori Customary Law and Maori Politics Class’
Friday 23 September 2011; 1pm

Rahui Katene, MP for Te Tai Tonga

As I was preparing what I would say to you today, an email shot into my inbox, headed “Maori under-represented in legal profession’.

The breaking news revelation came from the New Zealand Law Society magazine, LawTalk and reported that while Maori make up around 15 percent of the New Zealand population, we constituted just eight percent of law graduates in 2010; and just 3.5% of the lawyers who have elected to provide data on ethnicity.

The co-president of the Maori Law Society, Tama Potaka provided a clear challenge, in saying “It is important for Maori and New Zealand, for there to be a better understanding of the law amongst Maori – at individual, tribal and community levels”.

If anything could be seen as a tohu – it would have to be that news release.

Are we up for the challenge – to enhance the understanding we have as Maori, of the relevance of law and policy in our lives?

And so today, we might almost be mistaken as a recruiting team for Maori law – Metiria coming from a background as a corporate lawyer; and one of the most important periods in my life was my time as Managing Solicitor of Māori Legal Services / Te Rātonga Ture ki te Upoko o Te Ika Community Law Centre Trust.

Both of us has a different reason for why we entered law.

My decision was motivated by the injustices I had observed through my involvement with a group of women involved in Women's Refuge. I wanted to make the law work for our women – and the only way to do that, was to step up to the plate – or more to the point, step up to the bar.

I carry that same motivation with me into Parliament every day – how can I make the law work for our people?

I want to answer that question by referring to one of the most significant legislative and policy issues of the last decade for Maori, and that is the origins and evolution of the Marine and Coastal Area (Takutai Moana) Bill.

In 2008, the Maori Party entered into a confidence and supply arrangement with National driven by the united call of tangata whenua to throw out the Foreshore and Seabed Act. We did that with the passing of the Marine and Coastal Area (Takutai Moana) Bill –and we also restored due access to court.

But in our mind, it was never enough to just turf out the 2004 Act, without also achieving what we could in jointly sponsoring new legislation.

We wanted to create new opportunities for tikanga Maori to shape and influence the courts – and ultimately to transform the statute to succeed as an all-enduring solution for coastal hapu and iwi throughout the land.
And so the new Act in restoring Maori customary interests which were extinguished by the Foreshore and Seabed Act introduces three new levels of statutory rights;

• The first layer, mana tuku iho, demands that all whanau, hapu and iwi who exercise kaitiakitanga – guardianship – over that land, must be actively consulted in the common marine and coastal area;

• The second layer, a protected customary right, is a right which has been exercised over the marine and coastal area and is not extinguished as a matter of law.

• And the third, customary marine title, exists if the applicant group holds the specified area in accordance with tikanga, and has exclusively used and occupied the area since 1840 – or received it since 1840 in accordance with tikanga.

Before we look at the role of tikanga Maori in each of these three types of customary interest, we need to remember that the genesis for this new law is based in the ruling of the Court of Appeal in 2003 that tangata whenua were entitled to seek a determination from the Maori Land Court to determine whether land in the foreshore and seabed fell within the definition of Maori customary interest.

Almost immediately after the ruling was releasing, the Labour Government passed the Foreshore and Seabed Act to prevent Maori from seeking customary interest, instead vesting all foreshore and seabed in the Crown.

The 2011 Takutai Moana Act restores the right of Maori to access the High Court to have customary title applications heard and determined. It also removes Crown ownership and replaces it with a model which respects and reflects the Maori whakapapa based connection with the area.

Essentially, the key difference between the two Acts is that the new takutai moana Act uses tikanga as a key component of the test.

In this way it links directly to Ture Whenua Maori Act 1993.

The tests incorporate tikanga, allowing for variations amongst iwi, transfers of rights between hapu, and for tikanga to evolve.

As an example, allowing others to fish, and overlapping rights of neighbouring hapu do not disqualify claims – as is consistent with the practice of manaakitanga.

This new law then recognizes the mana tuku iho of all coastal iwi. Customary interests include a right to protect wahi tapu and a right to be consulted on conservation and resource management.

So ostensibly, with this new Act we have a framework from which to test the role of tikanga Maori in New Zealand law and policy. The key will be in putting it to the test.

But there are two very important variables that must be taken into account.

And I want to refer to the concluding comments of an important report produced by the Law Commission ten years ago, Maori custom and values in New Zealand Law.

That report ends with this statement:

‘If society is truly to give effect to the promise of the Treaty of Waitangi to provide a secure place for Maori values within New Zealand society then the commitment must be total.

It must involve a real endeavour to understand what tikanga Maori is, how it is practiced and applied, and how integral it is to the social, economic, cultural and political development of Maori, still encapsulated within a dominant culture in New Zealand society.

However it is critical that Maori also develop proposals which not only identify the differences between tikanga and the existing legal system but also seek to find some common ground so that Maori development is not isolated from the rest of society”.

With the Marine and Coastal Area (takutai moana) Bill Government is providing a contract of sorts, to put into place the opportunity for the law to take into account how tikanga is practiced and applied.
But importantly that opportunity must be a genuine one; one which is negotiated and debated constantly, representing a willingness to learn.

Yet when the Special Rapporteur on the rights of indigenous peoples, Professor James Anaya, reported on the situation for Maori in his report in February of this year, his comments reveal there is much room for improvement.

In section 21 of the report he notes that ‘even when the State has a duty to consult under a specific law or policy, consultation procedures appear to be applied inconsistently and are not always in accordance with traditional Maori decision-making procedures which tend to involve extensive discussion focused on consensus building’.

So there is much that could be done to improve the performance of the Crown in negotiating and being open to negotiate open ground with Maori.

The other conclusion from the 2001 Law Commission report into the application of tikanga into law and policy, placed the onus on Maori taking up the opportunity to be architects of a new design.

And in this regard I think all eyes will be on Te Rarawa in the Far North and Ngati Pahauwera on the East Coast who have both formally expressed interest in seeking customary title under the new legislation.

While the Crown must do its utmost to up its game, and improve its performance in understanding what tikanga Maori is, and how it is practiced and applied, tangata whenua may choose to seek the challenge of testing the proposals, and determining for themselves the right and proper application of tikanga in the policy and legal contexts.

Fortunately – for both sides of the Treaty relationship – there is a growing body of specialist knowledge and expertise as represented in the talents of the people gathered here today. I am confident that with your scholarship and enthusiasm applied to the task, that we might indeed, be able to make progress on the aspiration outlined by the Law Commission in 2001: to give effect to the promise of the Treaty of Waitangi to provide a secure place for Maori values within New Zealand society.

I want to devote the rest of my speaking time to hearing your views on exactly how we make this happen.

Authorised by Rahui Katene, Parliament Buildings, Wellington

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