The Indigenous World 2023: Aotearoa (New Zealand)

Written on 29 March 2023. Posted in Aotearoa (New Zealand)

Māori, the Indigenous people of Aotearoa, represent 16.5% of the country’s 5 million population. The gap between Māori and non-Māori is pervasive: Māori life expectancy is 7 to 7.4 years lower 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 signatories signed, and an English-language version (the Treaty). 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; the protection of Māori rights is therefore largely dependent upon political will and ad hoc recognition of Te Tiriti.

Aotearoa endorsed the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) in 2010. Aotearoa has not ratified ILO Convention 169.

This article is part of the 37^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 of an Indigenous person in Tanzania. This photo was taken by Geneviève Rose, and is the cover of the Indigenous World 2023 where this article is featured. Find the Indigenous World 2023 in full here.

Conservation and Māori rights

There were several developments of relevance to conservation and Māori rights in 2022. Two of these concern the Crown Minerals Act 1991, which is expressly focused on “promoting” exploitation of Crown-owned minerals (s 1A(a)). This conflicts with the kaitiaki (guardianship) responsibilities of iwi (nations) and hapū (extended kinship groups) with mana whenua (territorial authority) over those areas. A members bill was introduced into the House of Representatives which, amongst other things, would have amended the Act to prohibit the granting of permits for minerals prospecting, exploration and mining over conservation lands and waters.^[2] It has not, however, progressed past its first reading. The government’s Crown Minerals Amendment Bill, which passed its first reading and is before the select committee, also proposes changes to the Act, including ending the “promotion” of mineral exploitation and “strengthen[ing] engagement between permit holders, iwi and hapū to ensure Māori cultural interests in minerals and mining activities are understood and respected.”^[3] The Bill’s proposed changes nonetheless still fail to appropriately reflect the status of Māori as Tiriti partners.^[4]

The proposed overhaul of New Zealand’s resource management law also affects environmental protection and has important ramifications for Māori. The Spatial Planning and the Natural and Built Environment Bills both passed their first reading in 2022 and are before the select committee. They are intended to replace the much criticised Resource Management Act 1991 in order, among other things, to “better protect the environment”.^[5] One major concern regarding the bills is that they do not honour te Tiriti, particularly because the Natural and Built Environment Bill does not “effectively recognise or empower Māori to exercise their tino rangatiratanga under te Tiriti”. It proposes recognising only some Māori rights (and responsibilities) holders and not others, and it conceptualises the health of the natural environment in a Eurocentric way.^[6]

Māori water rights threatened

The enactment of new legislation has also threatened Māori water rights: the Water Services Entities Act 2022, which implements major water infrastructure reforms to storm water, drinking water and wastewater. The legislation shifts ownership, operation and management of water infrastructure, which was previously predominantly in the hands of local councils, to four publicly-owned regional bodies. The reforms purport to provide for co-governance with mana whenua but Māori concerns include the fact that proper co-governance is not reflected in the Act, such that Māori will effectively lose control over their water systems.^[7]

UNDRIP action plan stalls

The first stage of the two-stage engagement process for the development of a plan to take action on the implementation of the UNDRIP was completed early in 2022 but progress on the second stage has since stalled.^[8] A draft Declaration Plan – developed in partnership between the government, the National Iwi Chairs Forum’s Pou Tikanga and the Human Rights Commission – was set to be released for public consultation but this did not happen. Initial targeted engagement with Māori on the plan identified 12 key and far-reaching themes for the plan, including rangatiratanga, participation in government, equity and fairness.^[9] The concern is that a public backlash regarding Māori rights, particularly in relation to co-governance arrangements with Māori, has chilled the government’s commitment to the plan.

Significant cases on tikanga

An important and much-anticipated judgement from New Zealand’s highest court on the place of tikanga Māori (Māori law and custom) in State law was released in 2022 (for background see the Indigenous World 2021^[10]). In Ellis v R,^[11] the Supreme Court unanimously confirmed that “tikanga has been and will continue to be recognised in the development of the common law of Aotearoa/New Zealand in cases where it is relevant”; that it frequently “forms part of New Zealand law as a result of being incorporated into statutes and regulations” and that it “may be a relevant consideration in the exercise of [judicial] discretions.”^[12] Significantly, a majority of the Court held that problematic “colonial tests for incorporation of tikanga in the common law should no longer apply”; accepted that “tikanga was the first law of Aotearoa/New Zealand and that it continues to shape and regulate the lives of Māori”; cautioned the courts not to exceed their function when engaging with tikanga; and commented “that the appropriate method of ascertaining tikanga (where it is relevant) will depend on the circumstances of the particular case”.^[13] Despite these promising findings, ultimately tikanga did not feature centrally in the decision on the facts, which concerned admitting an appeal regarding criminal convictions against a deceased Pākehā appellant.

Tikanga was also prominent in another important judicial decision. Ngāti Whātua Ōrākei v Attorney General^[14] concerned a challenge by the iwi Ngāti Whātua Ōrākei (NWO) to the Crown’s Treaty settlement policy regarding overlapping claims by different iwi to the same lands. Without consulting with NWO, the Crown had offered parcels of land within central Auckland – where NWO asserts exclusive mana whenua – to Marutūāhu, a collective of five iwi. In turn, Marutūāhu asserted that they shared mana whenua over those areas. Attempts to resolve the conflict between NWO and Marutūāhu were unsuccessful and NWO ultimately took legal action against the Crown arguing that overlapping claims require the full consideration of tikanga and seeking a declaration that NWO has exclusive mana whenua over the relevant lands under tikanga. The judge hearing the case stated that tikanga is decided by iwi and hapū (for whom the dimensions of tikanga will vary) and not the Crown and declined to declare NWO as having exclusive mana whenua over the lands. The judge was strongly critical of the Crown’s Treaty settlement policy, finding that “[t]he Crown will need to take reasonable steps to understand, recognise and respect the tikanga of iwi or hapū, and the Crown will need to actively protect the ability of iwi and hapū to exercise their tikanga”.^[15] The case reflects broader calls for much more sophisticated engagement with tikanga by the State and the exacerbation of inter-iwi divisions by Crown policy.

UN Disabilities Committee raises concerns

The UN Committee on the Rights of Persons with Disabilities identified serious concerns regarding the human rights situation of Māori with disabilities. In its concluding observations on the combined second and third periodic reports of New Zealand under the Convention on the Rights of Persons with Disabilities (CRPD), the Committee noted, for example, the under-representation of Māori with disabilities in legislative and policy development and decision-making processes, especially Māori children; the intersectional discrimination experienced by Māori with disabilities; high rates of violence against Māori women and girls with disabilities; issues of access to information for Māori with disabilities; concerns regarding the removal of children from Māori parents with disabilities into State care; high rates of Māori children with disabilities in residential specialist schools; poorer health outcomes and vastly disproportionate poverty levels for Māori with disabilities; and the lack of support for Māori with disabilities to form their own organisations to represent themselves.^[16]

The Committee’s recommendations included that: New Zealand’s legislative and policy frameworks should reflect the Treaty, the CRPD and the UNDRIP “to ensure that Māori persons with disabilities are closely consulted and actively involved in decision-making processes and that their right to self-determination is recognized”; measures are adopted to explicitly protect persons with disabilities from intersectional discrimination, including on the basis of their Indigenous status; initiatives are developed “to increase the provision of culturally appropriate, accessible information and communications for Māori persons with disabilities”; action is taken to ensure children are not removed from parents with disabilities, particularly Māori, on the basis of impairment; the high proportion of Māori children with disabilities in residential specialist schools is addressed; action is taken to improve health outcomes, address poverty and respond to violence against women and girls, including for Māori with disabilities; and measures are implemented “to support the development of organizations of Māori persons with disabilities”.^[17]

Additional developments

Additional developments of note in 2022 include: the release of a cabinet paper on arrangements and parameters for the high-level design of a new redress system for those abused in State and faith-based care, of which a high proportion are Māori;^[18] critical Waitangi Tribunal reports, including concerning Te Ātiawa/Ngāti Awa claims as part of the Porirua ki Manawatu Inquiry;^[19] mana whenua efforts to work with local and central government to address the chronic housing crisis;^[20] and continued Māori-driven discussions on constitutional transformation to realise Māori rights.^[21]

Future outlook

It is anticipated that Aotearoa will move into a recession in 2023, and COVID-19 cases will continue, and continue to impact Māori disproportionally. National general elections will be held in 2023, with Māori rights (particularly co-governance arrangements) expected to be a hot political issue as the conservative opposition party gains in the popularity polls. Some exciting forthcoming developments include the expected release of the final report of the Royal Commission into Abuse in Care.

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 37^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 of an Indigenous person in Tanzania. This photo was taken by Geneviève Rose, and is the cover of the Indigenous World 2023 where this article is featured. Find the Indigenous World 2023 in full here.

Notes and references

^[1] Stats NZ, New Zealand Government, http://www.stats.govt.nz (these statistics are primarily drawn from the 2018 Census).

^[2] New Zealand Parliament. “Crown Minerals (Prohibition of Mining) Amendment Bill.” Bill introduced 11 August 2022, first reading 22 November 2022, https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_125791/crown-minerals-prohibition-of-mining-amendment-bill#:~:text=The%20bill%20amends%20the%20Crown,from%20or%20granted%20by%20the

^[3] Ibid, select committee, report due 22 May 2023, https://www.parliament.nz/en/pb/bills-and-laws/bills-proposed-laws/document/BILL_130002/crown-minerals-amendment-bill; Inside Government NZ. “Mining Act changes signal end for ‘promotion’ of Crown-owned minerals.” 23 November 2022, https://insidegovernment.co.nz/mining-act-changes-signal-end-for-promotion-of-crown-owned-minerals/

^[4] For a general critique of the Act from a Māori perspective see: Carl Billington. “Does the Crown Minerals Act Undermine Partnership with Māori?” IPANZ, https://ipanz.org.nz/Article?Action=View&Article_id=150378.

^[5] Inside Government NZ. “New resource management laws given first reading.” 22 November 2022, https://insidegovernment.co.nz/new-resource-management-law-given-first-reading/

^[6] For example, see the primers on the reforms prepared for the Federation of Maori Authorities (FOMA). FOMA, “Reform Of The Resource Management Act 1991.” 12 December 2022, https://www.foma.org.nz/reform-of-the-resource-management-act-1991/.

^[7] New Zealand Parliament “Water Services Entities Bill begins three waters reform.” originally published 20 June 2022, https://www.parliament.nz/en/get-involved/topics/all-current-topics/water-services-entities-bill-begins-three-waters-reform/; Manch, Thomas. “Labour alone in support of Three Waters bill as it passes into law”, Stuff, 8 December 2022, https://www.stuff.co.nz/national/politics/130704446/labour-alone-in-support-of-three-waters-bill-as-it-passes-into-law

^[8] Te Puni Kōkiri (Ministry of Māori Development). “UN Declaration on the Rights of Indigenous Peoples.” Last updated 20 October 2022, https://www.tpk.govt.nz/en/a-matou-whakaarotau/te-ao-maori/un-declaration-on-the-rights-of-indigenous-peoples; Radio New Zealand. “Government falling behind on timeframe for co-governance plans - Willie Jackson.” 6 December 2022, https://www.rnz.co.nz/news/political/480211/government-falling-behind-on-timeframe-for-co-governance-plans-willie-jackson.

^[9] Jackson, Willie. “Next Steps in Declaration Plan” Beehive, 22 April 2022, https://www.beehive.govt.nz/release/next-steps-declaration-plan.

^[10] Te Aho, Fleur. “The Indigenous World 2021: Aotearoa (New Zealand).” in The Indigenous World 2021, edited by Dwayne Mamo, 579-588. Copenhagen: International Work Group for Indigenous Affairs (IWGIA), https://www.iwgia.org/en/aotearoa-new-zealand/4198-iw-2021-aotearoa-new-zealand.html

^[11] The Supreme Court of New Zealand. Case NZSC 114, 2022, https://www.courtsofnz.govt.nz/assets/cases/2022/2022-NZSC-114.pdf

^[12] Ibid, [19].

^[13] Ibid, [21]-[23] per Winkelmann CJ, Glazebrook and Williams JJ.

^[14] The Hight Court of New Zealand, Auckland Registry. Case NZHC 843, 2022. https://assets.maorilawreview.co.nz/ngati_whatua_orakei_trust_v_attorney-general_no.4_2022_nzhc_843.pdf

^[15] Ibid, [69]; For background see: Muru-Lanning, Charlotte. “The High Court’s ‘groundbreaking’ Ngāti Whātua Ōrākei judgment, explained.” The Spinoff, 29 April 2022, https://thespinoff.co.nz/atea/29-04-2022/the-groundbreaking-high-court-judgment-against-ngati-whatua-orakei-explained.

^[16] Committee on the Rights of Persons with Disabilities (CRPD). “Concluding observations on the combined second and third periodic reports of New Zealand.” 26 September 2022, document CRPD/C/NZL/CO/2-3 see at [5(b)]; [7(b)]; [9(a)]; [11(a)]; [31(a)]; [43(b)]; [43(d)]; [45(d)]; [47(c)]; [49]; [53(a)]; [55]. https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRPD%2FC%2FNZL%2FCO%2F2-3&Lang=en

^[17] Ibid at [6(b)]; [8(b)]; [10(a)]; [12(a) and (b)]; [32(a) and (b)]; [44(b)]; [44(d)]; [46(d)]; [48(c)]; [50]; [52(a)]; [54]; [56].

^[18] Hipkins, Chris (Minister for the Public Service). “Responding to the Royal Commission into Historical Abuse in Care’s redress findings – Arrangements and parameters for the high-level design of a new redress system.” 1 December 2012, https://www.abuseinquiryresponse.govt.nz/assets/Uploads/Cabinet-papers/2022-12-01-Cabinet-paper-Redress-system-design-arrangements.pdf.

^[19] Waitangi Tribunal. “Waikanae: Report on Te Ātiawa/Ngāti Awa Claims.” Wai 2200, 2022.

^[20] Dimitrof, Stefan. “Mana whenua helping Rotorua solve chronic housing crisis.” Te Ao Māori News, 13 December 2022, https://www.teaomaori.news/mana-whenua-helping-rotorua-solve-chronic-housing-crisis.

^[21] For example, see the Constitutional Kōrero 2022 https://www.constitutionalkorero.co.nz/

Tags: Land rights, Global governance, Human rights, IWGIA