The Indigenous World 2024: Aotearoa (New Zealand)

Written on 25 March 2024. Posted in Aotearoa (New Zealand)

Māori, the Indigenous people of Aotearoa, represent 16.5% of the 5 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 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; 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 (UNDRIP) in 2010. Aotearoa has not ratified ILO Convention 169.

This article is part of the 38^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 man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here

Māori land rights threatened

In 2023, there were several developments of relevance to Māori rights to their whenua (land). The Waitangi Tribunal released its report into stage 2 of its inquiry into the Marine and Coastal Area (Takutai Moana) Act 2011.^[2] The 2011 Act enables Māori to apply for legal recognition of their customary interests in the foreshore and seabed. It replaced heavily criticised earlier legislation that extinguished those customary interests. The Tribunal found that the 2011 Act also breached the Treaty because, among other reasons, “the rights under the Takutai Moana Act do not sufficiently support Māori in their kaitiakitanga [guardianship] duties and rangatiratanga [authority] rights and fail to provide a fair and reasonable balance between Māori rights and other public and private rights”.^[3] The Tribunal recommended a package of amendments to the 2011 Act to address the Treaty breaches it identified. The government has not yet responded to the report.

Māori connections to their whenua remain under threat from natural disasters exacerbated by climate change. In February, Cyclone Gabrielle devastated parts of the North Island, including Te Tairāwhiti (the East Coast of the North Island). Some hapū (extended kinship groups) in the region have struggled to maintain ahi kaa (continuous occupation) of their traditional whenua because of the cyclone damage.^[4] Yet, the disaster also saw the practical exercise of mana motuhake (autonomy) by hapū and iwi (nations) in the region, as they cared for those affected by the cyclone, including: coordinating evacuation efforts, using marae (traditional Māori meeting spaces) to house and feed those displaced and providing essential goods and services.^[5]

Māori who are defending rights to their whenua and waters also face threats. For example, members of the iwi of Ngāti Pāoa, who have occupied the beach at Pūtiki Bay (Kennedy Point) on Waiheke Island to protect their whenua, ancestral sea and wildlife from a marina and other concerns, face wilful trespass and other charges before the courts.^[6] The case, at the pre-trial stage in 2023, may have important ramifications for how tikanga Māori (Māori law and custom) is exercised during protests by Māori.

On the positive side, in 2023, a collective redress package was agreed by iwi of Taranaki and the Crown to see Taranaki Maunga (mountains of Taranaki) gain legal personhood and the implementation of a co-governance arrangement to manage the national park where the Taranaki Maunga are located.^[7] It remains to be seen whether the legislation giving effect to the redress package will progress under the newly elected government.

Election spurs Māori rights regression

The national general election, on 14 October 2023, delivered a coalition government comprised of three right-leaning parties: the National Party, ACT and New Zealand First. The coalition government is already advancing a regressive agenda regarding Māori and their rights. For example, it has announced plans to: disband Te Aka Whai Ora, the Māori Health Authority, established to address negative Māori health outcomes; end “race-based policies”; and minimise the use of Māori language spoken within the public service. Most significantly, it will support the introduction of a bill, campaigned for by ACT, calling for a referendum to redefine – effectively, to diminish – the principles of the Treaty. Te Pati Māori (the Māori Party) co-leader Debbie Ngarewa-Packer has described the government’s approach as “taking us into a decline like we’ve never seen in race relations, certainly not since the earliest stages of colonisation”.^[8]

On the positive side, the elections also saw a stronger bloc of left-leaning minor parties with progressive policies regarding Māori and their rights emerge. Te Pati Māori holds six, and the Green Party 15, seats in parliament – a record number of seats for both parties.^[9] There are also a record number of Māori represented in parliament, with 33 Māori members of parliament (MPs), which translates into 27% of all MPs – a higher proportion than the 16.5% of Māori in the total population.^[10] Public protests by Māori and their allies in response to the government’s policies regarding Māori have also been growing.^[11]

Respectful judicial engagement with tikanga

There were two notable developments regarding the relationship between tikanga Māori (Māori law and custom) and state law in 2023, both of which reflected a respectful engagement with tikanga. Firstly, the New Zealand Law Commission (NZLC) released a much-awaited study paper on the topic: He Poutama.^[12] The study paper sought to help tikanga Māori and state law engage in ways that are authentic and “respectful of both systems’ parameters” by offering guiding frameworks for their engagement.^[13] The study paper will be a valuable resource for guiding future interactions between the two systems of law.

Secondly, the decision of Hart v Director-General Conservation^[14] was released. The case concerned a decision by the Department of Conservation to deliver whale jawbones to one iwi, on the basis that the iwi had cultural interests in the whale. The Department of Conservation’s decision was contested by another iwi, who also claimed cultural interests in the whale. The High Court held that the Department of Conservation’s decision was unlawful. The Court stated that “the question of any allocation needs to be resolved by an iwi to iwi process, undertaken consistently with the principles of tikanga”.^[15] The case has been described as reflective of a positive trend of “judicial caution” where conflicting or competing tikanga is involved. Instead of the courts determining the issue, the courts are encouraging iwi “to reach a tikanga-based solution amongst themselves”.^[16]

UN Children’s Committee raises concerns

The UN Committee on the Rights of the Child identified a host of concerns regarding the human rights situation of Māori children in its concluding observations on the sixth periodic report of New Zealand under the Convention on the Rights of the Child. The Committee noted, for example, its serious concern at persisting discrimination against Māori children; high suicide rates for Māori children and youth; the overrepresentation of Māori children in state care; the disproportionate number of Māori children living in poverty, experiencing food insecurity and severe housing deprivation; inequitable health outcomes for Māori children; and the overrepresentation of Māori children as victims of violence, abuse and neglect and in contact with the criminal justice system”.^[17]

The Committee’s extensive recommendations included that New Zealand should: address structural discrimination against Māori children; include specific measures targeting Māori children into its suicide prevention strategy and action plan and ensure attention to root causes; pay special attention to the situation of Māori when formulating and implementing, with children’s participation, a strategy for preventing and combating violence against children; work with Māori children and their communities to prevent the removal of Māori children into state care; prioritise the delivery of immunisation programmes for Māori; address inequalities in mental health outcomes for Māori; facilitate the access of Māori children and young people, in particular, to meaningful participation in climate change planning and decision-making; take measures to end child poverty, specifically prioritising Māori children; address the racism, discrimination, stigma and bias experienced by Māori children in school; increase the obligation on schools, child protection agents and youth justice decision makers to uphold the right to identity of Māori children; ensure that Māori children’s views are considered in decisions affecting them; finalise the action plans against racism and implement UNDRIP, including Māori children in the process; and develop an action plan to address disparities in the rates of sentencing, incarceration and suicide in detention of Māori children.^[18]

Additional developments

Additional developments of note in 2023 include: a host of critical Waitangi Tribunal reports, including the COVID-19 priority report, the stage one report on the housing inquiry into Māori homelessness, the stage one report of the health inquiry, the report on the Comprehensive and Progressive Agreement for Trans-Pacific Partnership, and the report on claimant funding as part of the justice system inquiry;^[19] the creation of the role of Rongomau Taketake at the New Zealand Human Rights Commission in order to lead the Commission’s work on Indigenous Peoples’ rights;^[20] and the settlement of historical Treaty claims with iwi, including with Whakatōhea.^[21]

Future outlook

With the new conservative coalition government in power for the next three years, it is anticipated that Māori rights will be under heightened threat. However, Māori will continue to mobilise to protect and advance their rights. Positive developments to help uphold tikanga Māori and Māori rights are expected to continue in New Zealand’s highest courts and Waitangi Tribunal.

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 38^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 man harvesting quinoa in Sunimarka, Peru. This photo was taken by Pablo Lasansky, and is the cover of The Indigenous World 2024 where this article is featured. Find The Indigenous World 2024 in full here

Notes and references

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

^[2] Waitangi Tribunal The Marine and Coastal Area (Takutai Moana) Act 2011 Inquiry Stage 2 Report (2023).

^[3] Waitangi Tribunal Tribunal releases second report on marine and coastal area regime (2023)

https://www.waitangitribunal.govt.nz/news/tribunal-releases/.

^[4] Radio New Zealand Cyclone Gabrielle: Human Rights Commission criticises lack of residents' input into East Coast recovery (3 August 2023) https://www.rnz.co.nz/news/national/495063/cyclone-gabrielle-human-rights-commission-criticises-lack-of-residents-input-into-east-coast-recovery.

^[5] Chapman Tripp Te Ao Māori: Trends and Insights (2023) https://chapmantripp.com/media/2wrphsdg/2023-te-ao-maori-trends-insights.pdf.

^[6] Protect Pūtiki https://www.facebook.com/protectputiki/; NZ Herald Police make 14 arrests at Pūtiki Bay, Waiheke Island, protesters appeal for reinforcements (28 July 2021) https://www.nzherald.co.nz/business/police-make-14-arrests-at-putiki-bay-waiheke-island-protesters-appeal-for-reinforcements/2AGGZAADSMIBITLSH2ZYP47SJA/.

^[7] Radio New Zealand Treaty settlement that ‘gives life’ to Taranaki Maunga signed (1 September 2023) https://www.1news.co.nz/2023/09/01/treaty-settlement-that-gives-life-to-taranaki-maunga-signed/.

^[8] ABC News Debate over race relations rages in NZ as new government repeals key social policies (18 December 2023) https://www.abc.net.au/news/2023-12-18/nz-maori-party-protests-new-governments-reform-agenda-/103224462. The National Party’s 100 Day Plan and the coalition agreements with ACT and New Zealand First are accessible via the National Party’s website: https://www.national.org.nz/.

^[9] ABC News, above fn 8.

^[10] New Zealand Parliament Record number of Māori MPs elected to New Zealand Parliament (15 December 2023) https://www.parliament.nz/mi/get-involved/features/record-number-of-maori-mps-elected-to-new-zealand-parliament/#:~:text=There%20are%2033%20M%C4%81ori%20MPs,MPs%20of%20the%2054th%20Parliament.&text=of%20the%20Clerk-,155%20years%20after%20New%20Zealand's%20first%20M%C4%81ori%20MPs%20were%20elected,all%20six%20parties%20in%20Parliament.

^[11] BBC New Zealand: Thousands march against new government's reversal of Indigenous policies (5 December 2023) https://www.bbc.com/news/world-asia-67621800.

^[12] New Zealand Law Commission He Poutama (2023) https://www.lawcom.govt.nz/assets/Publications/StudyPapers/NZLC-SP24.pdf.

^[13] Ibid at [1.4].

^[14] [2023] NZHC 1011.

^[15] Ibid at [129].

^[16] Chapman Tripp, above fn 5, at 8.

^[17] Committee on the Rights of the Child Concluding observations on the sixth periodic report of New Zealand CRC/C/NZL/CO/6 (28 February 2023) at [15], [18], [27(a)], [35], [39], [42(d)].

^[18] Ibid at at [16], [18(a)], [24(a)], [28(a)], [32(a)], [32(c)], [34], [36(a)], [37(c)], [40(a)], [40(b)], [40(c)], [43(e)].

^[19] All of the Waitangi Tribunal’s reports are accessible via their website: https://forms.justice.govt.nz/search/WT/reports.html

^[20] Human Rights Commission Claire Charters Rongomau Taketake https://tikatangata.org.nz/about-us/professor-claire-charters.

^[21] Whakatōhea Claims Settlement Bill

https://legislation.govt.nz/bill/government/2023/0261/latest/d21325668e2.html.

Tags: Land rights, Youth, Human rights, Cultural Integrity