Indigenous World 2020: Aotearoa (New Zealand)

Written on 11 May 2020. Posted in Aotearoa (New Zealand)

Māori, the Indigenous people of Aotearoa, represent 15% of the 4.5 million population. The gap between Māori and non-Māori is pervasive: Māori life expectancy is 7.3 years less than non Māori; household income is 78% of the national average; 45% of 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 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 over their subjects, 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 largely 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 demand climate action

Māori, like many Indigenous Peoples, are disproportionately impacted by climate change. Not only are they over-represented in negative socio-economic indices and thus positioned to bear the brunt of its effects but flooding threatens the papakāinga (traditional villages), urupā (burial grounds), wāhi tapu (sacred sites) and other significant places of Māori coastal communities, while ocean acidification threatens important traditional resources such as fisheries.²

New Zealand has enacted the Climate Change Response (Zero Carbon) Amendment Act 2019. The Act sets “a new domestic greenhouse gas emissions reduction target for New Zealand to reduce net emissions of all greenhouse gases (except biogenic methane) to zero by 2050” and “reduce emissions of biogenic methane to 24 – 47 per cent below 2017 levels by 2050, including to 10 per cent below 2017 levels by 2030”; requires “the Government to develop and implement policies for climate change adaptation and mitigation”; and establishes “a new, independent Climate Change Commission to provide expert advice and monitoring”.^₃ The Act does not, however, go far enough.

Throughout 2019, Māori climate campaigners have been active in calling for more effective climate change action, including participating in major school climate strikes around the country, attending the UN Climate Change Conference (COP25) in Spain, and instituting legal action.⁴ For example, Mike Smith, chair of the Climate Change Iwi Leaders Group, filed court proceedings against the government in 2019 in a personal capacity, citing the interests of all Māori, for breaches of the Treaty and the New Zealand Bill of Rights Act 1990 due to its failure to act quickly enough to protect Māori from the effects of climate change.⁵ Smith is seeking a declaration from the courts that the Crown will be in breach of its duties “unless it reduces total greenhouse gases by half by 2030, and to zero by 2050”.⁶

UNDRIP action plan in development

Promisingly, in March, nine years after New Zealand belatedly endorsed the UNDRIP, the Minister for Māori Development, Nanaia Mahuta, announced that the government was going to develop an action plan to promote and assess New Zealand’s progress towards implementing the UNDRIP.⁷ The following month, a delegation from the UN Expert Mechanism on the Rights of Indigenous Peoples visited New Zealand to guide the government and Māori on the plan.⁸ A government-appointed technical working group, chaired by leading Māori scholar Dr Claire Charters, has since been established to advise on the plan and engagement process.⁹

Māori rights featured in UPR

The human rights situation of Māori was the subject of sustained attention during New Zealand’s third UN Human Rights Council Universal Periodic Review. Recommendations from states included that New Zealand address discrimination and socio-economic disparities affecting Māori;¹⁰ “[t]ake all appropriate measures to enhance Māori and Pasifika representation in government positions at all levels, in particular at the local council level, including through the establishment of special electoral arrangements”;¹¹ and “[s]trengthen joint work with the Māori people aimed at the implementation of the United Nations Declaration on the Rights of Indigenous Peoples”.¹² New Zealand accepted 160 of the recommendations, including those cited here, noting the remaining 34.¹³ In many instances, however, the recommendations echoed those of previous cycles, with marked progress proving elusive.

Māori children over-represented in care

Hearings began in 2019 in the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions, abuse that has disproportionately affected Māori.¹⁴

The continuing over-representation of Māori in state care and state approaches to uplifting children were at the forefront of national attention in 2019 after a young Māori mother resisted multiple attempts by Oranga Tamariki (the Ministry for Children) to wrongfully take her daysold baby from her. The attempt sparked protests, four inquiries into Oranga Tamariki and an urgent Waitangi Tribunal hearing.¹⁵ Following the damning findings of its own internal review, Oranga Tamariki committed to changing its practices.¹⁶

On a positive note, new legislative provisions came into effect in July that outline specific duties for Oranga Tamariki in relation to the Treaty and Māori. These include reducing disparities for Māori children in care; having regard to the mana (honour) and the whakapapa (genealogy) of Māori children and whanaungatanga (kinship) responsibilities of their whānau (family), hapū (extended family) and iwi (nation) in its work; developing strategic partnerships with iwi and Māori organisations; and reporting annually on the fulfilment of these duties and their impact.¹⁷ Reports suggest that the new provisions are already being utilised in the courts to help keep Māori children in the care of their whānau.¹⁸

Land occupation at Ihumātao intensified

The land occupation at Ihumātao intensified in 2019. The occupiers, some mana whenua (those with traditional authority over the land), including Save Our Unique Landscape or SOUL, are opposing a proposed housing development there. The lands were confiscated by the Crown in 1863, sold into private ownership and then designated a special housing area in 2014. The current owner, Fletcher Residential Limited, plans to build 480 houses on the land. SOUL argues that the lands were wrongfully taken, consultation over their use was limited, and that the historically important lands should be returned to mana whenua.¹⁹

The occupation forms part of years of legal and political activism by SOUL, which in 2019 also included two petitions to central government and a 20,000-signature petition to the Auckland mayor asking the Auckland council to intervene. Tensions peaked when an eviction notice was served on occupiers in July.20 At the Prime Minister’s request, Fletcher Residential has put the development on hold while a resolution is found.²¹ The Kingitanga or Māori King movement (which has ties to the land) has been helping to broker a resolution. While no resolution has yet emerged, the talks have had the positive effect of uniting the previously divided mana whenua around calling for the return of the land. Pressure is now on the government to buy back the land from Fletcher Residential and return it to mana whenua.²² The stand-off highlights the injustice of Crown confiscations, the complexities that arise when those lands are sold to private third parties, and the ineffective protection afforded to Māori heritage sites.

New direction for criminal justice

The government announced a new approach to criminal justice in December 2019,²³ following acknowledgement that the system is failing Māori.²⁴ It will include “[w]orking with Māori on decision-making to improve outcomes across the justice system”.²⁵ The new direction looks set to fall short of the justice transformation called for by Māori at the Māori-led Ināia Tonu Nei – Now is the Time hui (meeting) in April but is a welcome start. Notably, this hui called for the abolition of prisons by 2040 with immediate steps to decolonise the system and design intergenerational reform centred on a Mana Ōrite model of partnership between Māori and the Crown.²⁶ The government’s announcement comes on the back of four powerful reports released in 2019 concerned with justice reform, of which the position of Māori was a significant focus.²⁷ Additionally, in November, the police launched a new Māori strategy, Te Huringa o Te Tai, which aims to reduce Māori reoffending by 25 per cent in the next five years, including through more partnerships with Māori and Māori-led intervention schemes.²⁸

Health and freshwater treaty breaches

The Waitangi Tribunal issued a series of critical reports throughout the year on breaches of the Treaty by the Crown. These included its stage 2 report on national freshwater and geothermal resources, highlighting the Crown’s failure to uphold the Treaty in the Resource Management Act 1991 and freshwater management policies,²⁹ and its report on stage 1 of the health services and outcomes inquiry, which found, among other things, that the Crown had failed to give effect to the Treaty guarantee of tino rangatiratanga (self-determination) in the provision of primary health services to Māori.³⁰

Further developments

Further developments in 2019 worthy of note and celebration included the enactment of legislation apologising for the Crown’s invasion of Parihaka in 1881 Parihaka was a community that symbolised peaceful resistance to the confiscation of Māori land;³¹ belated government progress on the Waitangi Tribunal’s recommendations in the Wai262 Indigenous traditional knowledge claim;³² legislation acknowledging Crown wrongs and pardoning Rua Kēnana, a Tūhoe pacifist and prophet who was unlawfully imprisoned;³³ and the appointment of Justice Joe Williams as the first Māori judge to the Supreme Court, New Zealand’s highest court.³⁴

Acknowledgement

The author wishes to acknowledge those members of Christchurch’s Muslim community whose lives were taken in the racist-fuelled terror attack in New Zealand in March. The attack cast a long shadow over our country. Moe mai rā e hoa mā (sleep my friends).

Fleur Te Aho (Ngāti Mutunga) is a Senior 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.

This article is part of the 34^th edition of The Indigenous World, a yearly overview produced by IWGIA that serves to document and report on the developments Indigenous Peoples have experienced. The photo above is from the Peruvian Amazon inside the Wampis territory, taken by Pablo Lasansky, and is the cover of The Indigenous World 2020 where this article is featured. Find The Indigenous World 2020 in full here

Notes and references

1. Statistics New Zealand http://www.stats.govt.nz (these statistics are primarily drawn from the 2013 census).
2. Meriana Johnsen “Far north Māori leader Mike Smith to sue government over climate change” (16 July 2019) https://www.rnz.co.nz/news/te-manu-korihi/394533/far- north-maori-leader-mike-smith-to-sue-government-over-climate-change
3. Ministry for the Environment Climate Change Response (Zero Carbon) Amendment Act https://www.mfe.govt.nz/climate-change/zero-carbon-amendment-act
4. Te Ao Māori News “‘We’re telling the government to wake up’ Rangatahi strike” (24 May 2019) https://teaomaori.news/were-telling-government-wake-rangatahi- strike; Radio New Zealand “Indigenous activists to take local stories to UN climate conference” (4 November 2019) https://www.rnz.co.nz/news/te-manu-korihi/402419/ indigenous-activists-to-take-local-stories-to-un-climate-conference
5. Stuff “Iwi leader to sue government for ‘failing to protect Maori’ from effects of climate change” (16 July 2019) https://www.stuff.co.nz/environment/climate- news/114278978/iwi-leader-to-sue-government-for-failing-to-protect-maori-from- effects-of-climate-change
6. Ibid
7. Te Puni Kōkiri UN Declaration on the Rights of Indigenous Peoples https://www.tpk. nz/en/whakamahia/un-declaration-on-the-rights-of-indigenous-peoples
8. Minister for Māori Development, Nanaia Mahuta, “Indigenous Experts Advise on Declaration Plan” (7 April 2019) https://www.beehive.govt.nz/release/indigenous- experts-advise-declaration-plan
9. Te Puni Kōkiri, endnote 7
10. For example, UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: New Zealand (1 April 2019) UN Doc A/HRC/41/4 at [122.42], [122.65], [122.179], [122.178], [122.182].
11. 11. Ibid at [122.165].
12. 12. Ibid at [122.174].
13. UN Human Rights Council, Report of the Working Group on the Universal Periodic Review: New Zealand – Addendum: Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review (17 June 2019) UN Doc A/HRC/41/4/Add.1 at [3] [“NZ’s UPR Reply”].
14. Abuse in Care Royal Commission of Inquiry Public hearings https://www.abuseincare.org.nz/public-hearings/.
15. Māni Dunlop “Oranga Tamariki inquiry acknowledges systems failed Hawke’s Bay whanau” (7 November 2019) https://www.rnz.co.nz/news/national/402763/oranga- tamariki-inquiry-acknowledges-systems-failed-hawke-s-bay-whanau
16. Oranga Tamariki Hawkes Bay Practice Review (5 November 2019) https://www.govt.nz/news/hawkes-bay-practice-review?fbclid=IwAR2dLFssVaI9- HeKk7-9rsTPn1pLjjRlafI8Cj-5ZdyDWmnTM0lGYpRmn5I.
17. Oranga Tamariki Legislation Act 2019, 7AA.
18. Māni Dunlop “New law returns child to whānau in Oranga Tamariki dispute” (22 July 2019) https://www.rnz.co.nz/news/national/394918/new-law-returns- child-to-whanau-in-oranga-tamariki-dispute?fbclid=IwAR2CARkEhx44phc8 HI_GBdVI5oJuvfYp3Oik9VABwnmFKtR5HDnh5IdIhrY
19. SOUL https://www.protectihumatao.com/.
20. Radio New Zealand “Ihumatao land battle: a timeline” (26 July 2019) https://www.odt.nz/news/national/rnz/ihumatao-land-battle-timeline
21. Michael Neilson “Prime Minister Jacinda Ardern halts building works on Ihumātao development site until solution found” (26 July 2019) https://www.nzherald.co.nz/nz/ news/article.cfm?c_id=1&objectid=12253198.
22. Pattrick Smellie “Fletcher seeks urgent talks on Ihumatao stalemate” (19 September 2019) https://www.nzherald.co.nz/business/news/article.cfm?c_ id=3&objectid=12269094
23. Hon Andrew Little “New direction for criminal justice reform” (12 December 2019) https://www.beehive.govt.nz/release/new-direction-criminal-justice-reform
24. For example, NZ’s UPR Reply, endnote 13 above, at [23].
25. Little, endnote 23
26. Ināia Tonu Nei: Hui Māori Report (July 2019) at 23. Aspects of these recommendations are supported in Te Uepū Hāpai i te Ora/Safe and Effective Justice Advisory Group Turuki! Turuki! (December 2019) at
27. Ināia Tonu Nei, endnote 26 above; Turuki! Turuki!, endnote 26 above; Te Uepū Hāpai i te Ora/Safe and Effective Justice Advisory Group He Waka Roimata (June 2019); Chief Victims Advisor Te Tangi o te Manawanui: Recommendations for Reform (December 2019).
28. Police Police launches Te Huringa o Te Tai (November 2019) https://www.police.govt.nz/news/release/police-launches-te-huringa-o-te-tai
29. Waitangi Tribunal The Stage 2 Report on the National Freshwater and Geothermal Resources Claims (2019).
30. Waitangi Tribunal Hauora: Report on Stage One of the Health Services and Outcomes Kaupapa Inquiry (2019).
31. Te Ture Haeata ki Parihaka 2019 (Parihaka Reconciliation Act).
32. Te Puni Kōkiri Wai 262: Te Pae Tawhiti https://www.tpk.govt.nz/en/a-matou-kaupapa/ wai-262-te-pae-tawhiti
33. Radio New Zealand “Rua Kēnana Pardon Bill signed into law at Maungapōhatu marae” (21 December 2019) https://www.rnz.co.nz/news/te-manu-korihi/405985/ rua-kenana-pardon-bill-signed-into-law-at-maungapohatu-marae
34. Courts of New Zealand https://www.courtsofnz.govt.nz/the-courts/supreme-court/judges

Tags: Land rights, Youth, Climate