Ka kuhu au ki te ture hei matua mō te pani

I seek shelter in the law, for it is a parent to the oppressed

- Te Kooti Arikirangi Te Turuki (c.1832-1893)

Sunday, October 24, 2010

Wai 262: Te Reo Māori chapter

Last week the Waitangi Tribunal released a pre-publication chapter that will form a part of the much anticipated Wai 262 report.  Wai 262 (so called because it was the two hundred and sixty second claim to be registered with the Waitangi Tribunal) is sometimes referred to as the Indigenous Flora and Fauna claim, but may be better described as the ‘Traditional Knowledge’ claim as the inquiry encompasses issues around cultural intellectual property that run much wider than flora and fauna.  The Waitangi Tribunal produced a Statement of Issues for the final stages of the inquiry, which gives some indication of the breadth of the issues to be addressed.  The chapter that was released last week covers matters relating to te reo Māori, the Māori language.  The Tribunal had not intended to release pre-publication chapters for this report in the way that some of the recent historical inquiries have done.  However, the decision was taken to release this chapter in order to be able to feed into the review of the Māori language strategy and sector that was announced in July of this year.

There has been reasonably wide media coverage of aspects of the released chapter, particularly around the Tribunal’s findings about the precarious state of te reo.  The Tribunal identifies a number of indicators that suggest a recent decline in the health of te reo, which is certainly alarming and may come as a surprise to many.  The Tribunal recommends a number of measures be taken to halt and reverse this decline, including revitalizing Te Taura Whiri I te Reo Māori by providing it with the powers and resources necessary to lead the recovery of te reo.

Perhaps not so widely-reported is the Tribunal’s analysis of Treaty principles that underpins its findings and recommendations.  The Tribunal sets out the now undisputed status of te reo Māori as a taonga that attracts the protections guaranteed in Article Two of the Treaty of Waitangi.  In doing so, the Tribunal draws support from its 1986 Te Reo Māori Report, the 1993 decision of the Privy Council in the Broadcasting Assets case, and more recently, the recognition of language rights in the United Nations Declaration on the Rights of Indigenous Peoples.  Furthermore, because of its central role in the maintenance and development of Māori culture as a whole, the Tribunal found that “[t]he language is clearly a taonga of quite transcendent importance to Māori…”.  Distinctive tribal dialects also ought to be protected and nurtured as integral to the health of a diverse and dynamic Māori language.  The Crown will, therefore, need to adopt a variety of approaches in order to satisfy the particular preferences of different iwi. 

So the Crown has clear duties arising from the Treaty in relation to te reo, and what is more, the Tribunal notes, there are no real countervailing interests that impact on the Crown’s duty, except perhaps the limitations of financial cost.  In fact, interestingly, the Tribunal points out that it may be argued that all New Zealanders have a vested interest in ensuring the survival and growth of te reo because “te reo helps shape our collective identity”.  The Tribunal is, however, careful to point out that both Māori and the Crown have obligations to foster the growth of te reo.  Noting that the most successful language revitalization strategies in regards to te reo have been the initiatives of Māori communities themselves, the Tribunal’s recommendations aim to empower Māori to take a lead in the development of te reo strategy.  As part of the Treaty principle of partnership, Māori communities must have ownership of the issues surrounding the health of te reo and contribute the initiative, the ideas, and energetic leadership.  Māori must also take the primary responsibility for speaking Māori in the home, where it is neither possible nor appropriate for the government to give direction in these matters.  The Crown for its part must provide expertise and resources in support and ensure that arrangements for decision-making authority encourage and reflect Māori ownership of the issues.  The Crown also has obligations to provide “a Māori-speaking government”.  The Tribunal notes that not only would widespread use of te reo throughout the public sector send a strong message about the importance of te reo through leading by example, but also it would enable and encourage Māori speakers to engage with the state in te reo Māori for all official purposes.  Te reo Māori is, after all, one of our official languages.

The Tribunal notes, in its letter of transmittal to the Minister of Māori Affairs, that although the te reo chapter is being released ahead of the other parts of the Wai 262 report, the Tribunal is still of the view that the real value of the Wai 262 report will come when it can be considered as a whole.  The Tribunal itself has indicated that it is nearing completion of the entire report.  Many people, not least of all the parties involved, will be looking forward to the release of this major report.  If the chapter on te reo Māori is any indication, we can expect a number of significant and wide-ranging recommendations from the complete report.

Friday, October 1, 2010

Tauranga Moana: Report on the Post-Raupatu Claims

On 4 September, the Waitangi Tribunal released its report Tauranga Moana, 1886-2006: Report on the Post-Raupatu Claims.  This report addresses the second stage of the Tribunal’s inquiry into the Tauranga claims.  It follows the Tribunal’s 2004 report Te Raupatu o Tauranga Moana: Report on the Tauranga Confiscation Claims.

The Report on the Post-Raupatu Claims details the significant land loss of Tauranga Māori that took place in the last decades of the nineteenth century, following the major confiscations.  The report also describes the various ways in which Crown actions continued to erode the land base of Tauranga Māori throughout the twentieth century.  

The Tribunal addresses a number of key areas of concern, which are closely associated with the loss of control over land and natural resources.

Land alienation
The Tribunal notes that policies such as those which sought to identify ‘idle’ Māori land that would be suitable for settlement by Pakeha and a range of public works takings resulted in a total loss of around 4960 acres (2008 ha) between 1886 and 2006.  The Tribunal found that the Crown had breached the Treaty principle of active protection by facilitating this alienation of land and failing to ensure that Tauranga Māori retained a sufficient land base for their foreseeable needs.  Furthermore, the inadequate efforts of the Crown to investigate grievances relating to land alienation breached the principle of good faith.  The Crown should also have ensured that compulsory acquisition of Māori land under the public works process was limited to truly exceptional circumstances.  Instead, compulsory acquisition was used for a wide range of purposes, often taking more land than was required for the purpose.

Land development constraints
The Tribunal also considered the Crown’s land development schemes between 1929 and 1975, which aimed to assist some Tauranga Māori to develop their land.  Though the Tribunal commends the intent behind these schemes, it found that, “these efforts did not, in the main, succeed in overcoming the competitive disadvantages faced by Māori land in multiple ownership”. Often, the owners of the land were excluded from meaningful involvement in the management of the land under these schemes and, in some cases were locked into long term arrangements which provided limited financial return.  Māori aspirations for land development have also been hampered by the failure to take into account the special characteristics of Māori land in rating and valuation processes and by the historical lack of opportunity for Māori political representation on local authorities. The report states that, in order to act consistently with Treaty principles, the Crown must now find a way to assist Tauranga Māori to maintain their current land base and to develop that land. 

Access to natural resources and environmental issues
Land loss also had an impact on the ability of Tauranga Māori to access other natural resources.  The traditional pattern of use-rights in the area, whereby each hapū would have access (and obligations of maintenance) in respect of both inland and coastal resources was constrained as European settlement placed pressure on easily farmable land.  Access to natural resources has also been affected by damage to the environment and degradation of ecosystems.  The draining of wetlands and deforestation were issues of particular significance for the way of life of Tauranga Māori.  The Tribunal notes that the Resource Management Act 1991 provides mechanisms for a more Treaty-consistent management of the local environment but points out that such mechanisms have not been effectively or fully utilised in practice and that more active Crown involvement is required to ensure the full potential of the Resource Management Act provisions are realised.

The Tribunal notes that there have been wide-ranging consequences of the Crown’s failure to meet the requirements of Treaty principles in these areas (and others, such as the maintenance of cultural heritage).  Of particular concern to the Tribunal is the general socioeconomic status of Tauranga Māori.  The Tribunal is careful to recognise that there are many factors which contribute to socioeconomic outcomes.  However, this report does find that past Crown policy and action, especially those policies and actions resulting in significant land loss, have contributed to the marginalisation of Tauranga Māori.  The Tribunal recommends that redress for Treaty breaches should therefore take into account the lost opportunity costs resulting from the economic marginalisation of Tauranga Māori and concludes:

Nothing less is due to the iwi and hapū of Tauranga Moana, if they are to climb back to a point of substantive equality from which they can exercise a real degree of tino rangatiratanga over their lives and resources, pursue their aspirations, and realise their full potential to contribute to the well-being of the region and the nation as a whole.