Indigenous World 2019: Aotearoa (New Zealand)

Written on 24 April 2019. Posted in Aotearoa (New Zealand)

The Māori, the indigenous people of Aotearoa, represent 15% of its 4.5 million people. The gap between the Māori and nonMāori is pervasive: Māori life expectancy is on average 7.3 years shorter than non-Māori; household income is only 78% of the national average; 45% of the Māori leave upper secondary school with no qualifications, and over 50% of the prison population is Māori.¹

The Treaty of Waitangi (the Treaty) was signed between the British and the Māori in 1840. There are two versions of the Treaty, an English-language version and a Māori-language version. The Māori version granted a right of governance to the British, promised that Māori would retain sovereignty over their lands, resources and other treasures and conferred the rights of British citizens on Māori. The Treaty has, however, limited legal status; accordingly, protection of Māori rights is mainly dependent upon political will and ad hoc recognition of the Treaty. New Zealand endorsed the UN Declaration on the Rights of Indigenous Peoples in 2010 (UNDRIP). New Zealand has not ratified ILO Convention 169.

Māori human rights defenders

In 2018, defenders of Māori rights in Aotearoa were free from the extreme levels of stigmatisation that indigenous rights defenders endured in other parts of the world, although indifference and hostility persisted in varying degrees. Positively, there were indications of a renewed willingness (yet to be fully realised) on the part of the Government to engage with some advocates for example, the independent mechanism monitoring the state’s implementation of the UNDRIP es-tablished by the Iwi Chairs Forum.²

Māori/Crown relations office launched

In December, the new Office for Māori Crown Relations Te Arawhiti was launched.³ It is officially “dedicated to fostering strong, ongoing and effective relationships with Māori across Government”, including a mandate to generate better solutions for Māori “social, environmental, cultural and economic development” and to provide “strategic leadership and advice on contemporary Treaty issues”.⁴ It consolidates several existing governmental units, including the Office of Treaty Settlements, the Marine and Coastal Area Unit and the Settlement Commitments Unit.

The Office is significant for Māori as it may signal a shift from government perceptions of the Māori/Crown relationship as defined by the negotiation of historical Treaty grievances to a broader, ongoing and forward-focused, partnership relationship.⁵ Dr Carwyn Jones, a prominent Māori legal academic, remarks that “[t]his new portfolio clearly creates opportunities for more consistent, more sophisticated, and more effective participation of Māori in public life,” but its promise will need to be matched by action.⁶ One of the key areas where action is required is how the Māori/Crown Treaty partnership is reflected in New Zealand’s constitutional arrangements. The Crown is still yet to formally engage with the recommendations made by the independent iwi (nations) led working group on constitutional transformation, the Matike Mai Aotearoa, in its 2016 report on an inclusive constitution for Aotearoa (see The Indigenous World 2017).

Tribunal finds breaches of self-determination

Amongst the Waitangi Tribunal reports released in 2018, was the pre-publication version of Parts I and II of Te Mana Whatu Ahuru, the report on the claims of the iwi and hapū (extended kinship groups) of Te Rohe Pōtae (the King Country).⁷ The report found that “[t]he Crown’s significant breaches of the Treaty of Waitangi caused serious damage to the mana [authority, power, influence] and autonomy of the iwi and hapū of Te Rohe Pōtae.” Accordingly, and importantly, the Tribunal recommended that “the Crown take immediate steps to act, in conjunction with the mandated settlement group or groups, to put in place means to give effect to their rangatiratanga [in general terms, their self-determination and autonomy].” The Tribunal identified that the precise nature of these means will be for the claimants and the Crown to determine, but it did recommend that “at a minimum, legislation must be enacted that recognises and affirms the rangatiratanga and the rights of autonomy and self-determination of Te Rohe Pōtae Māori”.⁸

Inquiry into abuse

In February, the Government established the Royal Commission of Inquiry into Historical Abuse in State Care, expanding the mandate to include abuse in the care of faith-based institutions in November.⁹ Its establishment followed media attention to stories of abuse and neglect and the lodging of a Waitangi Tribunal claim for an inquiry into the abuse of Māori children in state care.¹⁰ The Inquiry is concerned with historical abuse it covers the period from 1 January 1950 to 31 December 1999. It has two-strands. The first strand will examine the extent of abuse of children in state and non-state care, its impact and causes and contributing factors. The second strand will review the current systems in place to prevent abuse to test whether they are sufficient and to identify what legislative, policy, practice and other changes are needed.¹¹ The Inquiry is anticipated to take several years.

The abuse of children in care has disproportionately affected Māori, the effects of which are still felt today. This is due in large part to the overrepresentation of Māori children in care by the 1970s nearly half of all children in state care in Aotearoa were Māori.¹²

The Inquiry’s terms of reference instruct the Inquiry to “give appropriate recognition to Māori interests, acknowledging the disproportionate representation of Māori, particularly in State care.” The terms identify that “[t]he Inquiry will be underpinned by Te Tiriti o Waitangi, the Treaty of Waitangi, and will partner with Māori throughout the Inquiry process.”¹³ Positively, there is Māori representation on the Inquiry: Māori legal academic and rights advocate, Dr Andrew Erueti, has been appointed as a Commissioner. It will be crucial that the commitment to partnership with Māori is honoured when the Inquiry’s work begins in earnest in 2019.

Treaty settlement decisions judicially reviewable

In September, the Supreme Court handed down an important decision that will impact how the Government engages with iwi and hapū interests.¹⁴ The Court held that Crown decision-making regarding Treaty settlement negotiations (which, if successfully concluded, are ultimately enacted in settlement legislation and therefore subject to Parliamentary approval) is judicially reviewable. In doing so, the Court limited the principle of non-interference with Parliamentary proceedings. It may also prompt reconsideration of the Crown’s policy for dealing with overlapping claims in Treaty settlements, which provides that when there are cross-claims by iwi to a particular area, iwi are encouraged to resolve it among themselves, and only if they cannot do so does the Crown make a decision regarding the claims.¹⁵

The case was brought by Ngāti Whātua Ōrākei, an iwi with mana whenua (authority over land) in the Tāmaki isthmus, whose historical Treaty settlement with the Crown was concluded via legislation in 2012. In subsequent Treaty settlement negotiations between the Crown and other iwi with interests in the Tāmaki isthmus (Ngāti Paoa and the Marutūāhu Collective), the Crown offered land over which Ngāti Whātua Ōrākei asserts mana whenua to those iwi, without consultation. In response, Ngāti Whātua Ōrākei initiated judicial review proceedings challenging the decision. In turn, the Crown sought to rely upon the non-interference principle – as the offer was ultimately subject to Parliamentary approval via settlement legislation. The argument was successful in the High Court and Court of Appeal, but the Supreme Court limited the principle and ruled that Ngāti Whātua Ōrākei may return to the High Court for a hearing on its substantive rights over the land, where the Crown’s overlapping claims policy will also be challenged.¹⁶

Strong international criticism

International bodies were vocal in their criticism of the human rights situation of Māori in 2018. The United Nations (UN) Committee on Economic, Social and Cultural Rights (CESCR) identified far-reaching concerns. In its concluding observations on New Zealand’s fourth periodic report under the International Covenant on Economic, Social and Cultural Rights, the CESCR noted, for example, the legal and constitutional insecurity of the Treaty of Waitangi; the non-binding nature of recommendations of the Waitangi Tribunal; “the limited efforts that have been made to ensure meaningful participation of Māori in decision-making concerning laws that impact their rights, including land and water rights”; the lack of systematic implementation of the principle of free, prior and informed consent “in particular in the context of development and extractive activities carried out on territories owned or traditionally used by Māori”; the “entrenched unconscious bias towards Māori in education, health, justice and social services”; “the prevalence of domestic and gender-based violence” that particularly impacts Māori women and girls; the disproportionate rates of Māori in unemployment, living in poverty and experiencing severe housing deprivation; and disparities for Māori in health and education, including the limited availability of Māori-speaking teachers.¹⁷

The CESCR’s strong recommendations included that New Zealand, in partnership with Māori, “implement the recommendations of the Constitutional Advisory Panel regarding the role of the Treaty of Waitangi within its constitutional arrangements, together with the proposals put forward in the 2016 Matike Mai Aotearoa report”; fully implement the Tribunal’s recommendations, including those in Ko Aotearoa Tēnei; “[d]evelop a national strategy to bring legislation and public policy into line” with the UNDRIP and resource the independent mechanism monitoring it; implement “mechanisms to ensure meaningful participation of Māori in all decision-making processes affecting their rights”; “[t]ake effective measures to ensure compliance with the requirement of obtaining the free, prior and informed consent of indigenous peoples”; “introduce a government-wide strategy” to combat unconscious bias against Māori; pay particular attention to Māori in its measures to protect victims of domestic and gender-based violence and when addressing child abuse, poverty and housing issues; and partner with Māori to take targeted measures to address underemployment, health outcomes and to “develop culturally appropriate education programmes”.¹⁸ Māori contributed to the CESCR’s review process, informing the recommendations made.

The UN Committee on the Elimination of Discrimination against Women (CEDAW) also raised a host of concerns regarding the human rights situation of the Māori.¹⁹ In its concluding observations on New Zealand’s eighth periodic report under the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW’s recommendations included that New Zealand “[i]ncrease the availability of legal aid” for Māori women; “recognize the special needs of Maori women and girls” in the development of culturally appropriate guidelines to respond to violence; “[u]rgently address the working conditions” of Māori women; “[t]ake measures to reduce poverty and improve the economic empowerment” of Māori women; “improve the availability and quality of accessible mental health-care services” targeting Māori women; “adopt all legislation, including temporary special measures and awareness-raising measures, necessary to combat intersecting forms of discrimination against women”; and “provide alternatives to detention to reduce the high number of Māori women detainees”.²⁰

Overview and looking forward

The launch of Te Arawhiti potentially signals a positive shift in the Māori/ Crown relationship. Calls to recognise the rangatiranga of iwi by the Waitangi Tribunal, the launch of the Inquiry into the abuse of children in care, and the Supreme Court’s ruling that Treaty settlement decisions are judicially reviewable are also promising developments. Yet, serious concerns persist. Some of these were highlighted by international oversight mechanisms – including the lack of appropriate recognition of the Treaty partnership in New Zealand’s constitutional arrangements. Concerted action to give life to the Government’s rhetoric of Treaty partnership will be necessary if Aotearoa is to flourish. 

Notes and references

1. Statistics New Zealand http://www.stats.govt.nz (these statistics are primarily drawn from the 2013 Census).
2. See, g., Te Puni Kōkiri “Statement on Agenda Item 3: Country engagement” Expert Mechanism on the Rights of Indigenous Peoples, 11th session (10 July 2018). See PDF at http://bit.ly/2SONtCW .
3. Hon Kelvin Davis “Te Arawhiti: A ‘bridge’ to better Māori Crown relations launched at Parliament” (17 December 2018) http://bit.ly/2SMSxI4.
4. Te Arawhiti at http://bit.ly/2Ec1j9p
5. Carwyn Jones “Time’s right to start developing a true partnership of Māori and non-Māori”. At http://bit.ly/2STOlGJ .
6. Ibid
7. Waitangi Tribunal WAI 898 Te Mana Whatu Ahuru: Report on Te Rohe Pōtae Claims, Pre-publication version, Parts I and II (2018).
8. Waitangi Tribunal Waitangi Tribunal releases report on Te Rohe Pōtae claims (5 September 2018) http://bit.ly/2SLUOmH (emphasis added).
9. Hon Jacinda Adern “Royal Commission of Inquiry scope expan ded” (12 November 2018) http://bit.ly/2SM2NQY.
10. Aaron Smale “Claim for child abuse inquiry lodged with Waitangi Tribunal” (14 March 2017) http://bit.ly/2STODxj.Terms of reference of the Royal Commission of Inquiry into Historical Abuse in State and Non-State Care See PDF at http://bit.ly/2TLirt2 [“Terms of Reference”] at [22].
11. Dame Susan Devoy “Dame Susan Devoy calls for inquiry into abuse of Maori children” (2 March 2017) http://bit.ly/2SuwTJq.
12. Terms of Reference above n 11 at [5].
13. Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC
14. Chapman Tripp “Landmark case will help reshape way Government deals with iwi interests” (20 September 2018) http://bit.ly/2SIOInl
15. Ibid
16. UN Committee on Economic, Social and Cultural Rights Concluding observations on the fourth periodic report of New Zealand (1 May 2018) UN Doc E/C.12/NZL/CO/4 at [8], [10], [12], [23], [37], [44], [48].
17. Ibid at [9], [11], [13(b)], [13(c)], [24], [38], [40(a)], [45], [49].
18. UN Committee on the Elimination of Discrimination against Women Concluding observations on the eighth periodic report of New Zealand (25 July 2018) UN Doc CEDAW/C/NZL/CO/8 at [13], [25(a) and (g)], [33(a) and (c)], [39(d)], [43].
19. Ibid at [14(a)], [26(e)], [34(a)], [38(c)], [40(d)], [44].

Fleur Te Aho (Ngāti Mutunga) is a Lecturer in the Auckland Law School at the University of Auckland, email her at: This email address is being protected from spambots. You need JavaScript enabled to view it.