Friday, December 30, 2011

Wai 262 - The Making of International Instruments

The final substantive chapter of the Waitangi Tribunal’s report, Ko Aotearoa Tenei, addresses the concerns raised by the claimants in relation to the international agreements and non-binding instruments that the New Zealand government enters into with other states.  The Tribunal devotes a chapter of this report to these matters because “the range of international instruments now reaches into the lives of all New Zealanders and can change, reduce, or enhance their most basic rights.  Māori interests in traditional knowledge, culture, economic development, and the environment, to name a few, are all affected”.  The Tribunal considers how the guarantees of the Treaty of Waitangi might act to protect Māori interests in this context and what practical mechanisms might ensure such protection.

The Tribunal examines three important international instruments as brief case studies:
  • United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP, 2007) – ‘a landmark international acknowledgement that indigenous collectives as well as individuals have rights to self-determination and in respect of their culture, identity, language, employment, health, education, and other matters.’  The claimants argued that consultation with Māori had been limited, especially considering the significance of this instrument in relation to a broad range of Māori interests.  The last consultation that was referred to in Crown evidence took place in 2003 and the claimants contended that was neither representative nor effective consultation.
  • Convention on Biological Diversity (CBD, 1992) – ‘a legally binding agreement for the protection of all forms of biodiversity (that is, ecosystems, species, and genetic resources) in the common interests of all humankind.’  There appears to have been significant consultation of Māori leading up to the signing of the CBD, however, the claimants submitted that Māori had been excluded from the important ongoing international work programme of the CBD.  The Crown argued that genuine attempts had been made to consult with Māori in relation to this ongoing work, but acknowledged that had not always been successful and noted that its engagement strategy only applied to binding agreements (rather than non-binding guidelines developed through ongoing CBD processes).
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS, 1994) – an agreement that ‘sets international minimum standards for the protection of [Intellectual Property] and provides the framework for New Zealand’s domestic [Intellectual Property] law.’ The claimants raised concerns about the lack of consultation in relation to both the international negotiation of the TRIPS agreement and its implementation through domestic law.  The Crown noted that there had been some engagement with Māori in regards to the domestic legislation.  Māori provided submissions to the select committee considering the legislation and there was further consultation with Māori in relation to subsequent intellectual property law reforms.

The Tribunal notes that these three brief examples suggest some basic flaws in the Crown’s approach to engaging Māori in relation to international instruments.  Each of these instruments profoundly affects Māori interests in some way and yet consultation with Māori was uneven and, for one reason or another, it was often ineffective.  Problems with the Crown’s approach to engagement with Māori have arisen because the Crown:
  • does not always engage with Māori if an instrument is non-binding;
  • sometimes engages at the end (when laws are being passed) not from the beginning; and
  • sometimes does not engage at all even when the Māori interest is important.
The Tribunal suggests that the Crown’s approach will continue to be uneven and ineffective if it continues in the same vein and notes that the Treaty entitles Māori interests to a reasonable degree of protection.  In particular, the Treaty confirms:

that it is for Māori to say what their interests are and to articulate how they might be protected – in this case, in the making, amendment, or implementation of international instruments.  That is what the guarantee of tino rangatiratanga requires.  It is for the Crown to inform Māori as to upcoming developments in the international arena, and how it might affect their interests.  Māori must then inform the Crown as to whether and how they see their interests as being affected and protected.

As with other chapters in this report, the Tribunal suggests here that the type of engagement required by the Crown in order to be Treaty compliant will vary from case to case, to be determined by the Māori interests that are affected.  Significantly, the Tribunal envisages that there may be some instances “when the Māori interest is so overwhelming, and other interests by comparison so narrow or limited, that the Crown should contemplate delegation of its role as New Zealand’s ‘one voice’ in international affairs”.

Wednesday, December 21, 2011

Wai 262 - Rongoā Māori

The claims in the Wai 262 inquiry also raised a number of distinctive issues relating to traditional Māori medicine and healing, that is, rongoā Māori.  Chapter seven of the Waitangi Tribunal’s report addresses these issues.  In particular, the Tribunal considers the potential benefits of rongoā Māori (‘What Rongoā Has to Offer’) and the ways in which the Crown has supported, and the extent to which it has undermined, rongoā Māori. 

The Tribunal notes that rongoā Māori is based on Māori conceptions of health and well-being, and the Māori public health system revolved around the concepts of tapu and noa.  Maori traditional healing operated within that framework.  The Tribunal refers to the work of eminent Maori health specialist, Professor Mason Durie and suggests that there are five main categories of traditional Maori healing:
  1. ritenga and karakia - rituals and incantations
  2. rākau rongoā – plant medicines (though today ‘rongoā’ is used in a more general sense, it can be used to refer to this specific form of healing)
  3. mirimiri – a form of massage
  4. water – used in cleansing rituals and other treatments
  5. minor surgical procedures – such as blood-letting to relieve swelling

Note that the traditional Māori view of health and healing was that it comprised both physical and spiritual dimensions.  As the Tribunal says:
In the holistic Māori view of health, outward manifestations of sickness reflect broader environmental, family or spiritual problems.  Rākau rongoā are not considered effective on their own.  Indeed the most important form of treatment by tohunga was and remains spiritual.
The traditional healing practices of the tohunga were, however, not able to effectively protect against the waves of foreign diseases colonial Māori communities encountered. “In the face of this crisis, the tohunga’s status diminished.  Community adherence to tapu around the sick and the dead – which would have helped check the spread of disease – accordingly slackened.  Some tohunga at the turn of the century also resorted to confused methods that had no basis in tradition.”  In an effort to address cases of medical misapplication or fraud, the Government granted the Māori councils the power to regulate the activities of local tohunga.  Calls continued for tohunga to be banned altogether, and, after the emergence of Rua Kenana’s prophetic movement seemed to tip the balance in 1906, the Tohunga Suppression Act was passed the following year.

The Tohunga Suppression Act 1907 essentially defined three offenses:
  • gathering Māori around one by practicing on their superstition or credulity;
  • misleading or attempting to mislead any Māori by professing or pretending to possess supernatural powers in the treatment or cure of disease; and
  • misleading or attempting to mislead any Māori by professing or pretending to possess supernatural powers in the foretelling of future events.

The Tribunal is scathing of the Act and the motives underlying it:
Rather than being a genuine attempt to deal with the problems affecting Māori at the time, the Act was an expression of an underlying mind-set that was fundamentally hostile to mātauranga Māori.  The Act’s very title sent an aggressive and provocative message about the Government’s view of Māori beliefs.  Far from tackling charlatans or dangerous practices, the legislation imposed an effective ban on traditional Māori healing overall.  Thus, in our view, the Act was not only unjustified but also racist, in that it defined a core component of Māori culture as wrong and in need of ‘suppression.
The Act failed to suppress tohunga completely.  There were relatively few convictions under the Act and at the time of the Act’s repeal in 1962 there were still tohunga openly practicing.  It did, however, have the effect of driving the practice underground.  Although, in recent years, rongoā has received recognition and support from government, its relatively late engagement with government (compared with other forms of previously suppressed mātauranga, such as te reo Māori), is, suggests the Tribunal, a legacy of this legislation.

Importantly, the Tribunal notes that rongoā could play an important part in addressing the current crisis in Māori health.  The Tribunal reasons:
  • the medicinal properties of rākau rongoā are considerable;
  • Māori ideas about the role of te taha wairua (the spiritual dimension) in health remains fundamental;
  • expanding rongoā services may draw more Māori into the primary health care system;
  • the available evidence suggests growing Māori demand for rongoā services.

The Tribunal commends the Crown for funding rongoā services but notes that the Crown’s support for rongoā has been characterised by delays and even regressive steps such as the curtailing of funding for rākau rongoā. The Tribunal suggests that this can only be because the Crown is not convinced of the efficacy of rongoā or that the scepticism reflected in the Tohunga Suppression Act is still limiting the role of rongoā within the public health framework because the Government is afraid of being accused of political correctness.

The Tribunal therefore recommended that the Crown take the following actions “as a matter of urgency”:
  • Recognise that rongoā Māori has significant potential as a weapon in the fight to improve Māori health.
  • Incentivise the health system to expand rongoā services.
  • Adequately support Te Paepae Matua (the national body that supports and represents tohunga) to play the quality control role that the Crown should not and cannot play itself.
  • Begin to gather some hard data about the extent of current Māori use of services and the likely ongoing extent of demand.

Significant issues relating to Māori health and healing were raised in the context of the Wai 262 inquiry.  As this chapter demonstrates, many of those issues were quite specific to rongoā, or played out in a particular way in relation to this field of mātauranga Māori.  Yet, this chapter also reflects the broader concerns raised by the claimants in this inquiry – that is, how to ensure mātauranga Māori is fully recognised, that it is supported, and that it is controlled, managed, used, and protected by those who are the kaitiaki.

Thursday, November 24, 2011

Wai 262 - Mātauranga Māori

Since I have already provided some comment on the Te Reo chapter of Ko Aotearoa Tēnei, which was released prior to the publication of the complete report, I will continue my commentary by going straight on to Chapter Six.

The sixth chapter of the Waitangi Tribunal’s report on the Wai 262 inquiry is titled ‘When the Crown Controls Mātauranga Māori’.  This chapter addresses government policy and practice across a range of agencies that are responsible for the protection, preservation, and/or transmission of mātauranga Māori (Māori knowledge).  The Tribunal considers the role of culture and heritage agencies (the Ministry for Culture and Heritage, Creative New Zealand, the Museum of New Zealand – Te Papa Tongarewa, Television New Zealand, Archives New Zealand, and the National Library); education agencies (the Ministry of Education and the New Zealand Qualifications Authority); research, science and technology agencies (the Ministry of Research Science and Technology and major funding bodies such as the Royal Society of New Zealand and the Health Research Council); and Te Puni Kōkiri.  The Tribunal notes that, for each of these agencies, “mātauranga Māori is at the heart of what they do”.

The Tribunal’s analytical framework is based on the central premise that the protection of mātauranga Māori is a shared responsibility.  That is, the Crown has a clear obligation to protect mātauranga Māori under Article 2 of the Treaty and Māori, as kaitiaki of their own mātauranga, must also provide leadership in this area.  The Tribunal notes that there are various considerations which must be balanced in determining the most appropriate approach to the protection and management of mātauranga Māori.  For example, the Tribunal notes that the practicalities of protecting the physical integrity of fragile taonga may sometimes need to be balanced against the principle of kaitiaki control.  Similarly, rules to protect kaitiaki control of access to iwi or hapū-based material held, perhaps, by Archives New Zealand, should also take into account the effect that this may have on distancing Māori from that mātauranga.

As in other parts of this report, the Tribunal seeks then to lay down general principles that may be applied to particular circumstances on a case-by-case basis.  The key principles that the Tribunal suggests ought to guide the management of mātauranga Māori are:
  • Crown co-ordination
  • appropriate prioritization
  • sufficient resourcing, and
  • shared objective setting.

In relation to the culture and heritage agencies, the Tribunal finds that current levels of co-ordination are insufficient, noting specific matters such as uncertainty  of co-operation between TVNZ and Māori Television over Māori programming, “an area where competition seems counter-productive to the cause of preserving te reo and mātauranga Māori”. 

In the case of both the culture and heritage agencies and the education agencies, the Tribunal finds that much better engagement with Māori in these sectors is required.  In relation to both sectors, the Tribunal recommends formalizing partnerships between the relevant Crown agencies and Māori, through, amongst other measures, the establishment of electoral colleges.  In the case of the culture and heritage sector, the Tribunal suggests that an electoral college might be comprised of various Māori cultural groups (Toi Māori Aotearoa/Māori artists association, Te Rōpū Whakahau/Māori librarians collective, Te Matatini Society, iwi organisations, etc) who could appoint representatives to “sit at a partnership table with the Crown”.  The membership of the proposed electoral college in the education sector might include the Kōhanga National Trust, Te Rūnanganui o Ngā Kura Kaupapa, and Te Tau Ihu o Ngā Wānanga.  In both cases, the intention is to establish a mechanism to facilitate true partnership between Māori and the Crown in setting objectives in these sectors.

The Tribunal expresses particular concern about the priority accorded to mātauranga Māori amongst the research, science and technology agencies.  The Tribunal notes the Vision Mātauranga document which provides a policy framework for the Ministry of Research, Science and Technology (now the Ministry of Research, Science and Innovation) to promote mātauranga Māori in the science sector.  However, the Tribunal points to the lack of emphasis on mātauranga Māori within the Ministry’s planning and strategy documents and recommends that the science sector agencies make mātauranga Māori a strategic priority in its own right.  The Tribunal also recommends the establishment of a Māori purchase agent in the research and science sector to “boost Māori research capacity and fund the preservation of mātauranga Māori and research that explores the interface between mātauranga and modern applications”.

The Tribunal makes a number of other specific recommendations in each sector and also includes recommendations for Te Puni Kōkiri to establish better mechanisms for partnership and shared decision-making in areas directly concerned with mātauranga Māori.  Overall, the Tribunal notes that while many of the agencies working in this area have Māori advisory groups or similar, there are very few instances in which Māori have real decision-making power.  As in other parts of the report, the Tribunal recommends that, for the Crown to act consistently with Treaty principles, Crown agencies must “step up and create real forms of partnership with Māori communities” and that the Crown must “adjust its mind-set and accept that it represents Māori too”.

Saturday, September 24, 2011

Wai 262 - Taonga and the Conservation Estate

While Chapter Three of Ko Aotearoa Tēnei is concerned with environmental law and policy as it relates to resource management and the use of private land, there is a significant set of distinctive issues that arise in respect of the conservation estate.  Chapter Four of the report addresses those issues relating to Taonga and the Conservation Estate.

The first thing to note is the particular importance of the conservation estate in the context of these issues.  In part, the vast size of the conservation estate makes it central to any discussion relating to environmental law and policy.  As the report notes, the Department of Conservation owns or is responsible for more than 8 million hectares of land, about one third of New Zealand.  But the area of land is not the only significant matter.  The conservation estate has not been subject to the sort of farming, urbanization, and other modifications to the land and the environment that other parts of the landscape have undergone.  The conservation estate is therefore home to most of the surviving “taonga places”, where kaitiaki relationships with the natural environment and flora and fauna are possible in a way that they are not in other areas.  The Department of Conservation is also responsible for almost all remaining indigenous flora and fauna species and so control access to these taonga.

The Waitangi Tribunal acknowledges that, in many ways, the Department of Conservation has led the way amongst government agencies in terms of building relationships with Māori, and yet the Department’s structure and guiding policies still fall well short of what is required by the Treaty partnership.  The Department seems to be very comfortable with consultation, but has not taken more substantive steps towards power-sharing. The Tribunal notes that the Conservation Act 1987 includes the most powerful Treaty principles provision in current legislation and recommends significant reforms in order for the Department to meet the obligation to give effect to Treaty principles.

One of the ways in which the Department of Conservation engages with Māori at a local level is through their Pou Kura Taiao.  The Pou Kura Taiao are chosen for their mana within the local Māori community and their knowledge of tangata whenua, tikanga, and te reo.  Their role is to ‘monitor and sustain departmental capability to achieve effective engagement’ between Māori and the Department.  The Tribunal recognises that this is a very effective model for ‘upgrading DOC’s capacity to relate to tangata whenua on the ground’ but stresses that Pou Kura Taiao cannot take the place of the Māori Treaty partner. 

And in order to institutionalise a shift to a partnership model changes are required to the Department’s structure and policy.  For example, the Tribunal considers that the Conservation General Policy and the General Policy for National Parks, which set the key strategic and policy direction for the Department, ought to include obligations to give effect to the Treaty principle of partnership.  Similar to the Tribunal’s recommendations in relation to local authorities in the resource management context, in relation to the management of the conservation estate, the Department of Conservation should be required to seek out and identify opportunities to establish power-sharing arrangements with tangata whenua wherever possible.  The Tribunal is also highly critical of the 2006 document published by Te Puni Kōkiri and the Ministry of Justice entitled Crown-Māori Relationship Instruments: Guidelines and Advice for Government and State Sector Agencies.  The Tribunal finds that these guidelines are effectively binding rules that are ‘far too restrictive for an organization with a statutory duty to build sound Treaty relationships.’

The major structural change recommended by the Tribunal is the establishment of a national Kura Taiao Council and conservancy-based Kura Taiao boards.  These entities would sit alongside the existing Conservation Authority and conservation boards.  The Conservation Authority and conservation boards provide important stakeholder input into conservation strategy and planning at both a national and local level. The Tribunal envisages that the Kura Taiao Council and Kura Taiao boards would provide a tangata whenua parallel to the existing organizational structure and engage with the Conservation Authority and conservation boards “to determine, case by case, the appropriate level of tangata whenua control, partnership, or influence over taonga in the environment, and to develop new models for the management of those taonga”. 

The Tribunal’s report addresses two other specific areas of the management of the conservation estate.  The first of these is the customary use of taonga species from within the conservation estate.  This was a significant issue for many of the claimants involved in the inquiry.  Again the Tribunal looks to the development of partnerships between local tangata whenua committees and the Department of Conservation to manage customary harvesting and access to taonga species, emphasizing the importance of joint decision-making in these matters.  The Tribunal also considers the management of commercial activity on conservation land, recommending the Department of Conservation formalize its processes for consulting with tangata whenua about concessions within their rohe as well as providing that tangata whenua interests have a reasonable degree of preference when the Department makes decisions about commercial activities in the conservation estate. 

Wednesday, September 7, 2011

Saana Murray

I was very sad to hear of the passing of Saana Murray at the weekend. Saana was the only one of the original Wai 262 claimants that was still alive when the report was released in July and, before any further discussion of the report, it is important to acknowledge her.  Without the foresight shown by her and her fellow claimants all those years ago and the determination they demonstrated in pursuing the issues addressed in the Wai 262 inquiry we might not yet have come to directly consider, in such a comprehensive way, the Crown’s failure to recognise and respect mātauranga Māori across the whole of government. Her role in the Wai 262 inquiry was, of course, just one example of her passion and her commitment to Māori rights and the wellbeing of her people.  She was laid to rest today at Kapowairua.