Ka Mate, Ka Mate; Ka Ora, Ka Ora

A few weeks ago, the Haka Ka MateAttribution Act 2014 was passed into law. This Act gives effect to provisions contained in the Ngāti Toa Rangatira Deed of Settlement that relate to the haka Ka Mate. Composed by the Ngāti Toa leader Te Rauparaha, Ka Mate has evolved into something that is seen as a national haka, performed by many of New Zealand’s national sporting teams.
As the statement of association set out in the Act makes clear, although Ka Mate is perceived as being symbolic of New Zealand identity, Ngāti Toa see this haka as being inextricably bound up with their own tribal identity:

The haka Ka Mate is regarded by Ngāti Toa Rangatira as one of the legacies of Te Rauparaha. Given the role of Te Rauparaha in Ngāti Toa Rangatira history, the connection between Ngāti Toa Rangatira and the haka Ka Mate is significant, and it forms an integral part of Ngāti Toa Rangatira history, culture, and identity.

 The Act (and the provisions in the Deed of Settlement that it implements) is designed to address long-standing concerns Ngāti Toa have had about the performance and use of Ka Mate.  The Tribunal heard evidence relating to Ka Mate in its Wai 262 inquiry and in Ko Aotearoa Tēnei: A report into claims concerning New Zealand law and policy affecting Māori culture and identity (2011) the general thrust of Ngāti Toa’s concerns were outlined as follows:

Te Ariki Kawhe Wineera, a direct descendant of Te Rauparaha, is concerned about the misuse of Ka Mate in various New Zealand and overseas commercial ventures. While some renditions of the haka are respectful, many simply ignore the cultural values inherent in the composition, and some are unquestionably offensive – including, for example, an Italian television advertisement for Fiat cars in which a group of women perform a mock haka. Mr Wineera wishes to protect the integrity of Ka Mate, as well as the values that underlie it. He also wishes to ensure that in circumstances where Ka Mate is performed respectfully and with the consent of his iwi, Ngāti Toa receives at least some of the commercial benefits that might flow from that use. He argued that Ngāti Toa’s kaitiakitanga [guardianship] in respect of Ka Mate should be recognised in law.

 In this Act, the Crown acknowledges the significance of Ka Mate as a taonga of Ngāti Toa Rangatira and as an integral part of their history, culture and identity. The Act also provides that any publication of Ka Mate for commercial purposes and communication of Ka Mate to the public must include a statement that Te Rauparaha was the composer of Ka Mate and a chief of Ngāti Toa Rangatira. This legislation will be reviewed after 5 years of enactment to consider whether the interests of Ngāti Toa Rangatira relating to Ka Mate are sufficiently protected.
One thing that is obvious but interesting in the case of Ka Mate is that Ngāti Toa are not attempting to prevent the haka being performed, but rather wish to ensure that its integrity is maintained and that the mana of Te Rauparaha and Ngāti Toa are acknowledged. According to media reports, Ngāti Toa have good relationships with the NZ Rugby Football Union, other national sports teams, and institutions such as the army and police who use Ka Mate.

This Act responds to some of the particular issues faced by Ngāti Toa in relation to Ka Mate. However, these issues around Ka Mate also point to some of the wider questions about the protection of traditional knowledge within the context of an intellectual property rights system primarily designed to address other types of issues.

Year 172

The 172ndyear in the life of the Treaty of Waitangi saw a number of major developments with significant potential to re-shape the Māori-Crown partnership.  These developments have taken place in all branches of government –  important decisions from the Supreme Court and Court of Appeal, as well as a major report from the Waitangi Tribunal; the new foreshore and seabed legislation and something of a reconfiguration of Māori representation in Parliament; and the establishment of a Ministerial review of constitutional issues.

2011 was, of course, an election year.  But, by the time of the General Election in November, an important change had already taken place amongst the Māori seats.  Early in the year, Hone Harawira, the Member for Te Taitokerau, was suspended from the Māori Party caucus after publicly criticizing the Marine and Coastal Area Bill and the Māori Party’s support of that legislation.  He resigned from the Māori Party, and re-won the his seat standing as an independent at the subsequent by-election. He was returned again as the Member of Parliament for Te Taitokerau in the General Election, this time as leader of the newly formed Mana Party. The Mana Party list included a number of prominent left-wing activists such as Sue Bradford and John Minto, as well as high-profile Māori advocates, many of whom were formerly active within the Māori Party.   Although the Mana Party did not achieve enough support to bring a second MP into Parliament, the very formation of the party, along with the defeat of the incumbent (and hard-working) Maori Party MP, Rahui Katene, in Te Tai Tonga (to Labour’s Rino Tirikatene) suggest Māori voters have been concerned by the often cosy relationship between the Māori Party and the National Party.

The new foreshore and seabed legislation, which was the ostensible catalyst for the split in the Māori Party, was duly enacted and now sits on the statue books as the Marine and Coastal Area (Takutai Moana) Act 2011.  I have posted a number of times on this site about aspects of this legislation, including the apparently cavalier attitude of National Party members of the Māori Affairs Select Committee to the final shape of the legislation.  It is true that the Marine and Coastal Area Act makes some important symbolic changes and some other minor improvements to the regulation of the foreshore and seabed, but the basic framework of the previous legislation remains largely untouched.  As I have noted previously, the Act maintains many of the discriminatory aspects of the Foreshore and Seabed Act.  It still, explicitly, treats Maori interests as a lesser form of title than freehold title and until the Government’s attitude to Maori customary interests changes, it is going to be difficult to achieve a durable resolution of these issues and impossible to achieve one that is just.

The state legal system’s recognition of Māori custom and customary rights was also the subject of the Court of Appeal’s decision in Takamore v Clarke.  In this case, the Court essentially had to determine whether the whānau of James Takamore (deceased) had the right, by virtue of Tuhoe custom, to take the body of the deceased, as they had done, to be buried on his ancestral lands. The Court of Appeal confirmed that the executor of a will is entitled to make the final decision about where the testator is to be buried. The Court reached this result by two different routes reflected in the joint judgment of Justices Glazebrook and Wild and the separate judgment of Justice Chambers.  Justices Glazebrook and Wild reasoned that the Tūhoe burial custom that allows the body of the deceased to be taken by force without the agreement of the testator cannot be recognised by the common law because it is repugnant to a “root” principle of the legal system, the rule of law.  However, Glazebrook and Wild also set out what they describes as “a more modern approach to customary law” and found that the common law has developed to a point where executors should take indigenous customs relating to burial into account under the common law.  Justice Chambers agreed that the appeal should be dismissed though he did not comment on whether the Tūhoe burial custom could be recognised but rather reasoned that the custom did not apply to Mr Takamore, whether or not it could be recognised at common law.

Another decision that is of particular relevance to Māori that was also delivered in 2011 was the Supreme Court’s decision in Haronga v Waitangi Tribunal.  Alan Haronga had originally made an application for an urgent hearing of the Waitangi Tribunal in September 2009 in light of Crown advice that the Crown and Te Manu Whiriwhiri (a body comprised of several mandated groups from throughout the Gisborne region) intended to initial a deed of settlement in December 2009.  Mr Haronga sought an urgent hearing before the Waitangi Tribunal to address remedies for Treaty breaches specifically in relation to the Mangatu State Forest.  Mr Haronga argued that redress in relation to these breaches should be addressed through the Mangatu Incorporation and that none of the groups within Te Manu Whiriwhiri had the mandate to agree a settlement in relation to those specific issues.  Judge Clark, in the Waitangi Tribunal, declined the application for an urgent hearing, but the Supreme Court disagreed with the three key planks of Judge Clark’s reasons and the majority considered that Judge Clark had no choice but to direct an urgent hearing of Mr Haronga’s application and so ordered the Tribunal to undertake such a hearing (with Justice William Young dissenting on the issue of remedy). The majority’s decision is notable for requiring the Tribunal to undertake an urgent hearing of Mr Haronga’s application and make a decision as to what, if any, remedy is appropriate in this case.  This, in itself, is likely to have considerable ramifications for the way in which the Tribunal approaches urgency applications in future, particularly those that relate to remedies. 
The Waitangi Tribunal itself released a major report in 2011.  Ko Aotearoa Tēnei, the Tribunal’s report into the Wai 262 claims was released on 2 July 2011 and marked the conclusion of the Waitangi Tribunal’s first whole-of-government inquiry. The report makes detailed recommendations for changes in law, policy, and government practice on matters relating to intellectual property and traditional knowledge, genetic and biological resources of indigenous species, Māori communities relationship with the natural environment in the context of both environmental planning and conservation, the Māori language, museums and cultural heritage, traditional Māori healing and medicine, and the role of Māori in the making of international instruments which affect their interests. The Tribunal’s report and the findings and recommendations within are now with the New Zealand Government, while officials formulate a response. While the Government is under no legal obligation to accept the Tribunal’s findings or to adopt its recommendations there is, no doubt, political pressure currently being exerted on the Government to, on the one hand, implement the Tribunal’s recommendations, and, on the other hand, to reject those recommendations.  Yet, whatever the official response from government, this report will remain a hugely significant document because it articulates a conceptually coherent vision of a state founded in the worldviews of two distinct cultures.  Importantly, it goes beyond simply articulating a vision, but suggests a range of practical law and policy mechanisms by which that vision might be realized.
While 2011 saw the conclusion of the Tribunal’s Wai 262 inquiry, another potentially significant process is just beginning.  The announcement of the Government’s ‘consideration of constitutional issues’ was actually made in December 2010, though the formal appointment of a constitutional advisory panel did not take place until August 2011.  The panel is comprised of a number of eminent New Zealanders, and roughly half the members are Māori.  It is notable, however, that there are no constitutional lawyers on the panel.  The panel has been appointed to:

stimulate public interest in, and awareness of, New Zealand’s constitutional arrangements and issues arising. 

establish a forum to develop and share a range of ideas on constitutional issues, including seeking the views of all New Zealanders, including Maori, in a manner that is reflective of the Treaty of Waitangi relationship. 

develop an understanding of the range of perspectives on New Zealand’s constitutional arrangements, including the range of topical issues requiring further discussion, debate and policy consideration.

Meanwhile, the National Iwi Chairs Forum has established an independent constitutional working group to develop recommendations for a constitutional model that is based on tikanga Māori, the Declaration of Independence and the Treaty of Waitangi.  The Working Group is quite distinct from the Government review and has much wider terms of reference.  Convened by Māori advocate and constitutional law expert Moana Jackson, the Working Group will be undertaking a process of engaging Māori in discussion of constitutional matters beginning this year.
With these major constitutional conversations taking place, the 173rd year in the life of the Treaty of Waitangi is shaping up to be another interesting one in the development of the Treaty relationship.

Wai 262 – The Making of International Instruments

The final substantive chapter of the Waitangi Tribunal’s report, Ko Aotearoa Tenei, addresses the concerns raised by the claimants in relation to the international agreements and non-binding instruments that the New Zealand government enters into with other states.  The Tribunal devotes a chapter of this report to these matters because “the range of international instruments now reaches into the lives of all New Zealanders and can change, reduce, or enhance their most basic rights.  Māori interests in traditional knowledge, culture, economic development, and the environment, to name a few, are all affected”.  The Tribunal considers how the guarantees of the Treaty of Waitangi might act to protect Māori interests in this context and what practical mechanisms might ensure such protection.
The Tribunal examines three important international instruments as brief case studies:
  • United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) – ‘a landmark international acknowledgement that indigenous collectives as well as individuals have rights to self-determination and in respect of their culture, identity, language, employment, health, education, and other matters.’  The claimants argued that consultation with Māori had been limited, especially considering the significance of this instrument in relation to a broad range of Māori interests.  The last consultation that was referred to in Crown evidence took place in 2003 and the claimants contended that was neither representative nor effective consultation.
  • Convention on Biological Diversity (CBD, 1992) – ‘a legally binding agreement for the protection of all forms of biodiversity (that is, ecosystems, species, and genetic resources) in the common interests of all humankind.’  There appears to have been significant consultation of Māori leading up to the signing of the CBD, however, the claimants submitted that Māori had been excluded from the important ongoing international work programme of the CBD.  The Crown argued that genuine attempts had been made to consult with Māori in relation to this ongoing work, but acknowledged that had not always been successful and noted that its engagement strategy only applied to binding agreements (rather than non-binding guidelines developed through ongoing CBD processes).
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, 1994) – an agreement that ‘sets international minimum standards for the protection of [Intellectual Property] and provides the framework for New Zealand’s domestic [Intellectual Property] law.’ The claimants raised concerns about the lack of consultation in relation to both the international negotiation of the TRIPS agreement and its implementation through domestic law.  The Crown noted that there had been some engagement with Māori in regards to the domestic legislation.  Māori provided submissions to the select committee considering the legislation and there was further consultation with Māori in relation to subsequent intellectual property law reforms.

The Tribunal notes that these three brief examples suggest some basic flaws in the Crown’s approach to engaging Māori in relation to international instruments.  Each of these instruments profoundly affects Māori interests in some way and yet consultation with Māori was uneven and, for one reason or another, it was often ineffective.  Problems with the Crown’s approach to engagement with Māori have arisen because the Crown:
  • does not always engage with Māori if an instrument is non-binding;
  • sometimes engages at the end (when laws are being passed) not from the beginning; and
  • sometimes does not engage at all even when the Māori interest is important.

The Tribunal suggests that the Crown’s approach will continue to be uneven and ineffective if it continues in the same vein and notes that the Treaty entitles Māori interests to a reasonable degree of protection.  In particular, the Treaty confirms:

that it is for Māori to say what their interests are and to articulate how they might be protected – in this case, in the making, amendment, or implementation of international instruments.  That is what the guarantee of tino rangatiratanga requires.  It is for the Crown to inform Māori as to upcoming developments in the international arena, and how it might affect their interests.  Māori must then inform the Crown as to whether and how they see their interests as being affected and protected.

As with other chapters in this report, the Tribunal suggests here that the type of engagement required by the Crown in order to be Treaty compliant will vary from case to case, to be determined by the Māori interests that are affected.  Significantly, the Tribunal envisages that there may be some instances “when the Māori interest is so overwhelming, and other interests by comparison so narrow or limited, that the Crown should contemplate delegation of its role as New Zealand’s ‘one voice’ in international affairs”.

Wai 262 – Rongoā Māori

The claims in the Wai 262 inquiry also raised a number of distinctive issues relating to traditional Māori medicine and healing, that is, rongoā Māori.  Chapter seven of the Waitangi Tribunal’s report addresses these issues.  In particular, the Tribunal considers the potential benefits of rongoā Māori (‘What Rongoā Has to Offer’) and the ways in which the Crown has supported, and the extent to which it has undermined, rongoā Māori. 

The Tribunal notes that rongoā Māori is based on Māori conceptions of health and well-being, and the Māori public health system revolved around the concepts of tapu and noa.  Maori traditional healing operated within that framework.  The Tribunal refers to the work of eminent Maori health specialist, Professor Mason Durie and suggests that there are five main categories of traditional Maori healing:
  1. ritenga and karakia – rituals and incantations
  2. rākau rongoā – plant medicines (though today ‘rongoā’ is used in a more general sense, it can be used to refer to this specific form of healing)
  3. mirimiri – a form of massage
  4. water – used in cleansing rituals and other treatments
  5. minor surgical procedures – such as blood-letting to relieve swelling

Note that the traditional Māori view of health and healing was that it comprised both physical and spiritual dimensions.  As the Tribunal says:

In the holistic Māori view of health, outward manifestations of sickness reflect broader environmental, family or spiritual problems.  Rākau rongoā are not considered effective on their own.  Indeed the most important form of treatment by tohunga was and remains spiritual.

The traditional healing practices of the tohunga were, however, not able to effectively protect against the waves of foreign diseases colonial Māori communities encountered. “In the face of this crisis, the tohunga’s status diminished.  Community adherence to tapu around the sick and the dead – which would have helped check the spread of disease – accordingly slackened.  Some tohunga at the turn of the century also resorted to confused methods that had no basis in tradition.”  In an effort to address cases of medical misapplication or fraud, the Government granted the Māori councils the power to regulate the activities of local tohunga.  Calls continued for tohunga to be banned altogether, and, after the emergence of Rua Kenana’s prophetic movement seemed to tip the balance in 1906, the Tohunga Suppression Act was passed the following year.

The Tohunga Suppression Act 1907 essentially defined three offenses:
  • gathering Māori around one by practicing on their superstition or credulity;
  • misleading or attempting to mislead any Māori by professing or pretending to possess supernatural powers in the treatment or cure of disease; and
  • misleading or attempting to mislead any Māori by professing or pretending to possess supernatural powers in the foretelling of future events.

The Tribunal is scathing of the Act and the motives underlying it:

Rather than being a genuine attempt to deal with the problems affecting Māori at the time, the Act was an expression of an underlying mind-set that was fundamentally hostile to mātauranga Māori.  The Act’s very title sent an aggressive and provocative message about the Government’s view of Māori beliefs.  Far from tackling charlatans or dangerous practices, the legislation imposed an effective ban on traditional Māori healing overall.  Thus, in our view, the Act was not only unjustified but also racist, in that it defined a core component of Māori culture as wrong and in need of ‘suppression.

The Act failed to suppress tohunga completely.  There were relatively few convictions under the Act and at the time of the Act’s repeal in 1962 there were still tohunga openly practicing.  It did, however, have the effect of driving the practice underground.  Although, in recent years, rongoā has received recognition and support from government, its relatively late engagement with government (compared with other forms of previously suppressed mātauranga, such as te reo Māori), is, suggests the Tribunal, a legacy of this legislation.

Importantly, the Tribunal notes that rongoā could play an important part in addressing the current crisis in Māori health.  The Tribunal reasons:
  • the medicinal properties of rākau rongoā are considerable;
  • Māori ideas about the role of te taha wairua (the spiritual dimension) in health remains fundamental;
  • expanding rongoā services may draw more Māori into the primary health care system;
  • the available evidence suggests growing Māori demand for rongoā services.

The Tribunal commends the Crown for funding rongoā services but notes that the Crown’s support for rongoā has been characterised by delays and even regressive steps such as the curtailing of funding for rākau rongoā. The Tribunal suggests that this can only be because the Crown is not convinced of the efficacy of rongoā or that the scepticism reflected in the Tohunga Suppression Act is still limiting the role of rongoā within the public health framework because the Government is afraid of being accused of political correctness.

The Tribunal therefore recommended that the Crown take the following actions “as a matter of urgency”:
  • Recognise that rongoā Māori has significant potential as a weapon in the fight to improve Māori health.
  • Incentivise the health system to expand rongoā services.
  • Adequately support Te Paepae Matua (the national body that supports and represents tohunga) to play the quality control role that the Crown should not and cannot play itself.
  • Begin to gather some hard data about the extent of current Māori use of services and the likely ongoing extent of demand.

Significant issues relating to Māori health and healing were raised in the context of the Wai 262 inquiry.  As this chapter demonstrates, many of those issues were quite specific to rongoā, or played out in a particular way in relation to this field of mātauranga Māori.  Yet, this chapter also reflects the broader concerns raised by the claimants in this inquiry – that is, how to ensure mātauranga Māori is fully recognised, that it is supported, and that it is controlled, managed, used, and protected by those who are the kaitiaki.

Wai 262 – Mātauranga Māori

Since I have already provided some comment on the Te Reo chapter of Ko Aotearoa Tēnei, which was released prior to the publication of the complete report, I will continue my commentary by going straight on to Chapter Six.
The sixth chapter of the Waitangi Tribunal’s report on the Wai 262 inquiry is titled ‘When the Crown Controls Mātauranga Māori’.  This chapter addresses government policy and practice across a range of agencies that are responsible for the protection, preservation, and/or transmission of mātauranga Māori (Māori knowledge).  The Tribunal considers the role of culture and heritage agencies (the Ministry for Culture and Heritage, Creative New Zealand, the Museum of New Zealand – Te Papa Tongarewa, Television New Zealand, Archives New Zealand, and the National Library); education agencies (the Ministry of Education and the New Zealand Qualifications Authority); research, science and technology agencies (the Ministry of Research Science and Technology and major funding bodies such as the Royal Society of New Zealand and the Health Research Council); and Te Puni Kōkiri.  The Tribunal notes that, for each of these agencies, “mātauranga Māori is at the heart of what they do”.
The Tribunal’s analytical framework is based on the central premise that the protection of mātauranga Māori is a shared responsibility.  That is, the Crown has a clear obligation to protect mātauranga Māori under Article 2 of the Treaty and Māori, as kaitiaki of their own mātauranga, must also provide leadership in this area.  The Tribunal notes that there are various considerations which must be balanced in determining the most appropriate approach to the protection and management of mātauranga Māori.  For example, the Tribunal notes that the practicalities of protecting the physical integrity of fragile taonga may sometimes need to be balanced against the principle of kaitiaki control.  Similarly, rules to protect kaitiaki control of access to iwi or hapū-based material held, perhaps, by Archives New Zealand, should also take into account the effect that this may have on distancing Māori from that mātauranga.
As in other parts of this report, the Tribunal seeks then to lay down general principles that may be applied to particular circumstances on a case-by-case basis.  The key principles that the Tribunal suggests ought to guide the management of mātauranga Māori are:
  • Crown co-ordination
  • appropriate prioritization
  • sufficient resourcing, and
  • shared objective setting.

In relation to the culture and heritage agencies, the Tribunal finds that current levels of co-ordination are insufficient, noting specific matters such as uncertainty  of co-operation between TVNZ and Māori Television over Māori programming, “an area where competition seems counter-productive to the cause of preserving te reo and mātauranga Māori”. 
In the case of both the culture and heritage agencies and the education agencies, the Tribunal finds that much better engagement with Māori in these sectors is required.  In relation to both sectors, the Tribunal recommends formalizing partnerships between the relevant Crown agencies and Māori, through, amongst other measures, the establishment of electoral colleges.  In the case of the culture and heritage sector, the Tribunal suggests that an electoral college might be comprised of various Māori cultural groups (Toi Māori Aotearoa/Māori artists association, Te Rōpū Whakahau/Māori librarians collective, Te Matatini Society, iwi organisations, etc) who could appoint representatives to “sit at a partnership table with the Crown”.  The membership of the proposed electoral college in the education sector might include the Kōhanga National Trust, Te Rūnanganui o Ngā Kura Kaupapa, and Te Tau Ihu o Ngā Wānanga.  In both cases, the intention is to establish a mechanism to facilitate true partnership between Māori and the Crown in setting objectives in these sectors.
The Tribunal expresses particular concern about the priority accorded to mātauranga Māori amongst the research, science and technology agencies.  The Tribunal notes the Vision Mātauranga document which provides a policy framework for the Ministry of Research, Science and Technology (now the Ministry of Research, Science and Innovation) to promote mātauranga Māori in the science sector.  However, the Tribunal points to the lack of emphasis on mātauranga Māori within the Ministry’s planning and strategy documents and recommends that the science sector agencies make mātauranga Māori a strategic priority in its own right.  The Tribunal also recommends the establishment of a Māori purchase agent in the research and science sector to “boost Māori research capacity and fund the preservation of mātauranga Māori and research that explores the interface between mātauranga and modern applications”.

The Tribunal makes a number of other specific recommendations in each sector and also includes recommendations for Te Puni Kōkiri to establish better mechanisms for partnership and shared decision-making in areas directly concerned with mātauranga Māori.  Overall, the Tribunal notes that while many of the agencies working in this area have Māori advisory groups or similar, there are very few instances in which Māori have real decision-making power.  As in other parts of the report, the Tribunal recommends that, for the Crown to act consistently with Treaty principles, Crown agencies must “step up and create real forms of partnership with Māori communities” and that the Crown must “adjust its mind-set and accept that it represents Māori too”.

Wai 262 – Taonga and the Conservation Estate

While Chapter Three of Ko Aotearoa Tēnei is concerned with environmental law and policy as it relates to resource management and the use of private land, there is a significant set of distinctive issues that arise in respect of the conservation estate.  Chapter Four of the report addresses those issues relating to Taonga and the Conservation Estate.
The first thing to note is the particular importance of the conservation estate in the context of these issues.  In part, the vast size of the conservation estate makes it central to any discussion relating to environmental law and policy.  As the report notes, the Department of Conservation owns or is responsible for more than 8 million hectares of land, about one third of New Zealand.  But the area of land is not the only significant matter.  The conservation estate has not been subject to the sort of farming, urbanization, and other modifications to the land and the environment that other parts of the landscape have undergone.  The conservation estate is therefore home to most of the surviving “taonga places”, where kaitiaki relationships with the natural environment and flora and fauna are possible in a way that they are not in other areas.  The Department of Conservation is also responsible for almost all remaining indigenous flora and fauna species and so control access to these taonga.
The Waitangi Tribunal acknowledges that, in many ways, the Department of Conservation has led the way amongst government agencies in terms of building relationships with Māori, and yet the Department’s structure and guiding policies still fall well short of what is required by the Treaty partnership.  The Department seems to be very comfortable with consultation, but has not taken more substantive steps towards power-sharing. The Tribunal notes that the Conservation Act 1987 includes the most powerful Treaty principles provision in current legislation and recommends significant reforms in order for the Department to meet the obligation to give effect to Treaty principles.
One of the ways in which the Department of Conservation engages with Māori at a local level is through their Pou Kura Taiao.  The Pou Kura Taiao are chosen for their mana within the local Māori community and their knowledge of tangata whenua, tikanga, and te reo.  Their role is to ‘monitor and sustain departmental capability to achieve effective engagement’ between Māori and the Department.  The Tribunal recognises that this is a very effective model for ‘upgrading DOC’s capacity to relate to tangata whenua on the ground’ but stresses that Pou Kura Taiao cannot take the place of the Māori Treaty partner. 

And in order to institutionalise a shift to a partnership model changes are required to the Department’s structure and policy.  For example, the Tribunal considers that the Conservation General Policy and the General Policy for National Parks, which set the key strategic and policy direction for the Department, ought to include obligations to give effect to the Treaty principle of partnership.  Similar to the Tribunal’s recommendations in relation to local authorities in the resource management context, in relation to the management of the conservation estate, the Department of Conservation should be required to seek out and identify opportunities to establish power-sharing arrangements with tangata whenua wherever possible.  The Tribunal is also highly critical of the 2006 document published by Te Puni Kōkiri and the Ministry of Justice entitled Crown-Māori Relationship Instruments: Guidelines and Advice for Government and State Sector Agencies.  The Tribunal finds that these guidelines are effectively binding rules that are ‘far too restrictive for an organization with a statutory duty to build sound Treaty relationships.’
The major structural change recommended by the Tribunal is the establishment of a national Kura Taiao Council and conservancy-based Kura Taiao boards.  These entities would sit alongside the existing Conservation Authority and conservation boards.  The Conservation Authority and conservation boards provide important stakeholder input into conservation strategy and planning at both a national and local level. The Tribunal envisages that the Kura Taiao Council and Kura Taiao boards would provide a tangata whenua parallel to the existing organizational structure and engage with the Conservation Authority and conservation boards “to determine, case by case, the appropriate level of tangata whenua control, partnership, or influence over taonga in the environment, and to develop new models for the management of those taonga”. 

The Tribunal’s report addresses two other specific areas of the management of the conservation estate.  The first of these is the customary use of taonga species from within the conservation estate.  This was a significant issue for many of the claimants involved in the inquiry.  Again the Tribunal looks to the development of partnerships between local tangata whenua committees and the Department of Conservation to manage customary harvesting and access to taonga species, emphasizing the importance of joint decision-making in these matters.  The Tribunal also considers the management of commercial activity on conservation land, recommending the Department of Conservation formalize its processes for consulting with tangata whenua about concessions within their rohe as well as providing that tangata whenua interests have a reasonable degree of preference when the Department makes decisions about commercial activities in the conservation estate. 

Saana Murray

I was very sad to hear of the passing of Saana Murray at the weekend. Saana was the only one of the original Wai 262 claimants that was still alive when the report was released in July and, before any further discussion of the report, it is important to acknowledge her.  Without the foresight shown by her and her fellow claimants all those years ago and the determination they demonstrated in pursuing the issues addressed in the Wai 262 inquiry we might not yet have come to directly consider, in such a comprehensive way, the Crown’s failure to recognise and respect mātauranga Māori across the whole of government. Her role in the Wai 262 inquiry was, of course, just one example of her passion and her commitment to Māori rights and the wellbeing of her people.  She was laid to rest today at Kapowairua.