The Indigenous World 2021: Aotearoa (New Zealand)
Māori, the Indigenous people of Aotearoa, represent 16.5% of the 4.7 million population. The gap between Māori and non-Māori is pervasive: Māori life expectancy is 7 to 7.4 years less than non-Māori; the median income for Māori is 71% that of Pākehā (New Zealand Europeans); 25.5% of Māori leave upper secondary school with no qualifications and over 50% of the prison population is Māori.[1]
Te Tiriti o Waitangi (the Treaty of Waitangi) was signed between the British Crown and Māori in 1840. There is a Māori-language version (Te Tiriti), which most Māori signed, and an English-language version. Te Tiriti granted a right of governance to the British over their subjects, promised that Māori would retain tino rangatiratanga (self-determination or full authority) over their lands, resources and other treasures and conferred the rights of British citizens on Māori. Te Tiriti has limited legal status, however; accordingly, protection of Māori rights is largely dependent upon political will and ad hoc recognition of Te Tiriti.
Aotearoa endorsed the UN Declaration on the Rights of Indigenous Peoples in 2010 (UNDRIP). Aotearoa has not ratified ILO Convention 169.
Māori disproportionately affected by COVID-19
The COVID-19 pandemic dominated the experiences of Māori, as it did all New Zealanders, in 2020. Aotearoa has been praised for its response to the pandemic internationally, recording comparatively fewer deaths as a result of its swift and significant lockdown measures and bouncing back quickly from its pandemic-induced recession. Yet, for many, the pandemic will have ongoing reverberations. Māori are among those New Zealanders who have been disproportionately affected by the COVID-19 pandemic. Māori have not tested positive for COVID-19 in high numbers: of the total cases recorded to 13 January 2021, 194 Māori had tested positive for COVID-19, only 8.7% of all recorded cases in Aotearoa. But Māori are more likely to die from the virus: five of the 25 individuals who have passed away from COVID-19 in Aotearoa were Māori.[2] Māori are also more likely to experience an exacerbation of already stark social and economic inequities, including in employment, health outcomes and access, experiences of family violence, access to education, housing and criminal justice. Further, Māori have often borne the brunt of shortcomings in the government’s handling of the pandemic.
At key points, the government failed to engage with Māori as Tiriti partners in its response to COVID-19. These included disproportionate incursions into the practice of Māori tikanga. For example, in the government’s haste to enact the COVID-19 Public Health Response Act 2020, one of several legislative responses to the pandemic, it provoked an outcry with its provision for warrantless search powers to be exercised on marae (traditional Māori meeting places). As Claudia Geiringer observes, “[u]ninvited police entry onto marae offends tikanga (law and custom), undermines tino rangatiratanga, and plays out against a long history of heavy-handed police action in relation to Māori.”[3] A last minute amendment to the Act, purportedly to address concerns by Māori, ultimately removed an additional layer of protection applicable to searches of marae.
The government also sought to place unduly restrictive limits on the number of people who could attend tangihanga (Māori funerals). Tangihanga are central to Māori tikanga and wellbeing. Initially, in May, the government announced that it would limit the number of people who could attend to 10, which prominent Māori lawyer Moana Jackson described as “an assault on our people”.[4] In response to criticism, however, the figure was quickly adjusted upwards and has continued in the same direction.
A host of issues arose in the criminal justice context, which disproportionately affect Māori given their overrepresentation in the justice system. These included access to justice issues as the country’s already overburdened judicial system had court proceedings limited to urgent, time-sensitive, matters during lockdown and jury trials suspended until the end of July.[5] At points, in prisons (where Māori are a numerical majority), prisoners were reportedly kept in their cells for more than 22 hours a day and “non-essential” movements such as whānau (family) visits were suspended.[6] Further, concerns were raised regarding the severe sentence imposed upon a Māori mother who escaped a managed isolation facility with her four children so that her children could see their dead father’s body. The mother was jailed for 14 days, while other facility escapees received non-custodial sentences.[7]
Māori and their rights have the potential to be adversely affected by aspects of the government’s economic recovery efforts, too. For instance, the COVID-19 Recovery (Fast-track Consenting) Act 2020 was passed in July. The Act is a temporary two-year measure that enables qualifying development projects, such as large infrastructure projects, to circumvent the usual consent process under the Resource Management Act 1991 (RMA). As concerned Māori have pointed out, “RMA processes generally enable iwi [nation] involvement to a much greater degree than this Act provides”[8] putting, for instance, wāhi tapu (sacred sites) at risk.
Māori demonstrated strong leadership during the pandemic. Some provided flu vaccinations within their rohe (areas), delivered food to kaumatua (elders), supported the provision of education and made personal protective equipment available to Māori health providers. Notably, Māori also exercised their authority, under tikanga Māori, to restrict access to at-risk communities. For example, iwi including Te Whānau-ā-Apanui in the Bay of Plenty and Ngāti Porou on the East Coast organised community checkpoints to support restrictions on travel during peak periods of concern.[9] The checkpoints were operated in collaboration with the police, local councils and civil defence (despite strong anti-Māori rhetoric from some quarters) – a positive example of Māori spearheading the practice of Te Tiriti partnership with government.
National elections bring strong representation
In the 2020 national general elections, the incumbent centre-left Labour Party won an outright majority of 65 of the 120 seats in the House of Representatives and resumed power. This is the first time one party has won a majority since the Mixed-Member Proportional voting system was introduced in Aotearoa. Labour has an encouraging Māori policy manifesto but an uneven track record in its respect for Māori rights, including in relation to the COVID-19 pandemic as discussed above. Labour subsequently entered into a cooperation agreement with the leftist Green Party, which makes provision for the Green Party co-leaders (one of whom is Māori) to hold ministerial portfolios outside of Cabinet in exchange for supporting Labour on procedural motions.
Māori secured a high level of representation in the House of Representatives. There are now 25 Members of Parliament (MPs) of Māori descent, which translates to 20.8% of all MPs.[10] This is higher than the proportion of Māori in the population but less than the proportion secured in the previous election.
Māori representation in Cabinet is historically high. Māori Ministers secured 25% of all Cabinet seats, which will help support a strong Māori voice in decision-making, even as Māori remain a numerical minority. Five Māori hold ministerial roles inside Cabinet and two outside. In total, Māori MPs hold 13 ministerial portfolios as well as a number of associate ministerial roles. Of note, Nanaia Mahuta is the first woman - and the first Māori woman - to hold the foreign affairs portfolio in Aotearoa.[11]
Another positive win for Māori was the return of the Māori Party, a political party with an explicit Māori kaupapa (vision), to the House of Representatives. The Māori Party regained two seats after failing to secure representation in the 2017 elections.
Tikanga decision potentially ground-breaking
A potentially ground-breaking decision on the place of Māori tikanga in state law was made by the Supreme Court, the highest court in Aotearoa, in 2020. In Ellis v R[12] the Court permitted an appeal regarding criminal convictions against the deceased Pākehā appellant to continue after hearing submissions regarding “how a tikanga Māori approach might displace the common law position that a right of appeal ends with the death of the appellant.”[13] The Court reserved their reasons, which will be provided in the Court’s judgment on the substantive appeal. Notably, counsel for both parties, as well as the Māori Law Society as intervener, agreed that tikanga is a source of law that can inform state law and that it is relevant to the case. The decision has the potential to fundamentally transform the way tikanga Māori is recognised within the state legal system.[14]
Expert links homelessness to colonisation
The United Nations Special Rapporteur on the right to adequate housing, Leilani Farha, was critical of Māori experiences of inadequate housing and homelessness following her country mission to Aotearoa in February 2020. In her end-of-mission statement, the Special Rapporteur recognised the centrality of Te Tiriti and the UNDRIP in understanding whether the right to housing is enjoyed in Aotearoa; connected disproportionately negative Māori housing outcomes to the ongoing impacts of colonisation; and called for a dramatic shift in Maori-Crown relations to be led by Māori. Her key recommendation was that the government should recognise the country’s housing crisis as a human rights crisis. She also recommended the creation of a Commissioner for Indigenous Peoples’ Rights within the New Zealand Human Rights Commission and government support and resourcing for iwi, iwi authorities and Māori housing providers to determine their own housing solutions.[15] The government has indicated that it will give close consideration to the Special Rapporteur’s findings.[16] The Special Rapporteur’s full report on her mission is expected to be released early in 2021.
Māori freshwater interests on agenda
Two important government policies on freshwater came into effect in September, both of which reference Māori freshwater values: the National Policy Statement for Freshwater Management 2020 and the Resource Management (National Environmental Standards for Freshwater) Regulations 2020. The former also provides for Māori to have an active role in freshwater management.[18]
Late in 2020, Ngāi Tahu began legal action against the Crown seeking recognition of its tino rangatiratanga over the freshwater within its area. The litigation was brought to address the degradation of local rivers and lakes as a result of environmental mismanagement.[19]
Additional developments
Additional developments of note in 2020 included the partial public release of a 2019 report on the development of an UNDRIP action plan prepared by a government-appointed technical working group (see The Indigenous World 2020);[20] Waitangi Tribunal reports, including on stage 1 of the Marine and Coastal Area (Takutai Moana) Act 2011 inquiry;[21] enactment of the Prisoner Voting Rights Electoral (Registration of Sentenced Prisoners) Amendment Act 2020, which restores the rights of prisoners sentenced to less than three years in prison to vote; publication of the interim report of the Royal Commission of Inquiry into Abuse in State Care and in the Care of Faith-based Institutions (see The Indigenous World 2020 and 2019);[22] the government’s announcement that it will buy back the land at the centre of the dispute at Ihumātao (see The Indigenous World 2020);[23] progress on the negotiation of Te Tiriti settlements;[24] and support for the establishment of Māori wards within local councils in Taranaki.[25]
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 35th 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 of the Indigenous community of Kawemhakan, Suriname, where they blocked their airstrip to prevent outsiders from arriving into their villages and potentially bringing COVID-19 with them. This photo was taken by the Mulokot Foundation in Kawemhakan and is the cover of The Indigenous World 2021 where this article is featured. Find The Indigenous World 2021 in full here
Notes and references
[1] “Statistics New Zealand.” Stats NZ. http://www.stats.govt.nz (these statistics are primarily drawn from the 2018 Census).
[2] Ministry of Health. “COVID-19 Case demographics.” https://www.health.govt.nz/our-work/diseases-and-conditions/covid-19-novel-coronavirus/covid-19-data-and-statistics/covid-19-case-demographics.
[3] Geiringer, Claudia. “The COVID-19 Public Health Response Act 2020” New Zealand Law Journal 159 (2020).
[4] Curtis, Elana. “An open letter to the government from a Māori public health specialist.” E-tangata, 5 April 2020. https://e-tangata.co.nz/comment-and-analysis/an-open-letter-to-the-government-from-a-maori-public-health-specialist/.
[5] Lynch, Nessa, and Yvette Tinsley. “Court adjourned: How the pandemic is delaying justice in criminal cases.” The Spinoff, 12 May 2020. https://thespinoff.co.nz/society/12-05-2020/court-adjourned-how-the-pandemic-is-delaying-justice-in-criminal-cases/.
[6] Mills, Alice. “From locked up to locked down.” Newsroom, 12 May 2020. https://www.newsroom.co.nz/ideasroom/2020/05/12/1167542/from-locked-up-to-locked-down.
[7] Radio New Zealand. “Questions raised after isolation escapee jailed.” https://www.rnz.co.nz/national/programmes/middayreport/audio/2018761565/questions-raised-after-isolation-escapee-jailed.
[8] See, e.g., Te Ohu Kaimoana. “Our feedback on COVID-19 Recovery (Fast-Track Consenting) Act 2020.” 8 July 2020. https://teohu.maori.nz/our-feedback-on-covid-19-recovery-fast-track-consenting-act-2020/.
[9] Charters, Claire. “The relevance of te Tiriti o Waitangi in the Covid-19 era.” Newsroom, 19 April 2020.https://www.newsroom.co.nz/ideasroom/2020/04/19/1133089/auckland-op-ed-on-ti-tiriti-by-april-22.
[10] Linkhorn, Craig. “2020 General Election and government formation.” Māori Law Review, December 2020.
[11] Ibid; Te Puni Kōkiri. “UN Declaration on the Rights of Indigenous Peoples” https://www.tpk.govt.nz/en/whakamahia/un-declaration-on-the-rights-of-indigenous-peoples.
[12] [2020] NZSC 89.
[13] Harris, Elliott. (with foreword by Carwyn Jones) “Sir Edward Taihakurei Durie student essay competition 2020 – Interrogating Ellis v The Queen: Tikanga Māori in the common law of Aotearoa New Zealand.” Māori Law Review, December 2020.
[14] Ibid.
[15] Farha, Leilani. “End of Mission Statement: Visit of the Special Rapporteur on the right to adequate housing to New Zealand.” 19 February 2020. [1], [2], [14], [18], [63], [66], [80].
[16] Wilson, Simon. “Homelessness: Housing a human right, make evictions illegal, UN visitor says.” NZ Herald, 19 February 2020. https://www.nzherald.co.nz/nz/homelessness-housing-a-human-right-make-evictions-illegal-un-visitor-says/PS2RRF7X2HRQGLZPWUWYZDDPRI/.
[17] Tūwharetoa Māori Trust Board. “Section 33 Transfer with Waikato Regional Council.” 31 July 2020. https://www.tuwharetoa.co.nz/ngati-tuwharetoa-set-to-become-first-iwi-to-utilise-a-section-33-transfer-with-waikato-regional-council/; Webb-Liddall, Alice. “Finally, a council has transferred responsibilities to iwi for the first time under the RMA.” The Spinoff, 6 August 2020. https://thespinoff.co.nz/atea/06-08-2020/a-council-has-transferred-responsibilities-to-iwi-for-the-first-time-under-the-rma/.
[18] Randal, Dave, et al. “Māori interests in natural resource management: 2019 and (much of) 2020 in review.” Māori Law Review, October 2020.
[19] Te Rūnanga o Ngāi Tahu. “Ngāi Tahu Rangatiratanga over Freshwater.” 2 November 2020. https://ngaitahu.iwi.nz/environment/ngai-tahu-rangatiratanga-over-freshwater/.
[20] Charters, Claire, et al. “He Puapua: Report of the Working Group on a Plan to Realise the UN Declaration on the Rights of Indigenous Peoples in Aotearoa/New Zealand” 2019.
[21] Waitangi Tribunal. “The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry: Stage 1 Report.” 2020.
[22] Royal Commission of Inquiry into Abuse in State Care and in the Care of Faith-based Institutions. “The Interim Report – Tāwharautia: Pūrongo o te Wā”. 2020.
[23] Patterson, Jane. “Ihumātao: Deal struck between government and Fletcher Building to buy disputed land.” Radio New Zealand, 17 December 2020. https://www.rnz.co.nz/news/political/433043/ihumatao-deal-struck-between-government-and-fletcher-building-to-buy-disputed-land.
[24] New Zealand Government. “Recent Treaty Settlements.” 17 November 2020. https://www.govt.nz/browse/history-culture-and-heritage/treaty-settlements/recent-treaty-settlements/.
[25] Groenestein, Catherine. “Unanimous South Taranaki District Council vote for Māori wards is welcomed.” Stuff, 12 November 2020. https://www.stuff.co.nz/taranaki-daily-news/news/300157256/unanimous-south-taranaki-district-council-vote-for-mori-wards-is-welcomed.
