Ka Mate, Ka Mate; Ka Ora, Ka Ora

A few weeks ago, the Haka Ka MateAttribution Act 2014 was passed into law. This Act gives effect to provisions contained in the Ngāti Toa Rangatira Deed of Settlement that relate to the haka Ka Mate. Composed by the Ngāti Toa leader Te Rauparaha, Ka Mate has evolved into something that is seen as a national haka, performed by many of New Zealand’s national sporting teams.

As the statement of association set out in the Act makes clear, although Ka Mate is perceived as being symbolic of New Zealand identity, Ngāti Toa see this haka as being inextricably bound up with their own tribal identity:

The haka Ka Mate is regarded by Ngāti Toa Rangatira as one of the legacies of Te Rauparaha. Given the role of Te Rauparaha in Ngāti Toa Rangatira history, the connection between Ngāti Toa Rangatira and the haka Ka Mate is significant, and it forms an integral part of Ngāti Toa Rangatira history, culture, and identity.

 The Act (and the provisions in the Deed of Settlement that it implements) is designed to address long-standing concerns Ngāti Toa have had about the performance and use of Ka Mate.  The Tribunal heard evidence relating to Ka Mate in its Wai 262 inquiry and in Ko Aotearoa Tēnei: A report into claims concerning New Zealand law and policy affecting Māori culture and identity (2011) the general thrust of Ngāti Toa’s concerns were outlined as follows:

Te Ariki Kawhe Wineera, a direct descendant of Te Rauparaha, is concerned about the misuse of Ka Mate in various New Zealand and overseas commercial ventures. While some renditions of the haka are respectful, many simply ignore the cultural values inherent in the composition, and some are unquestionably offensive – including, for example, an Italian television advertisement for Fiat cars in which a group of women perform a mock haka. Mr Wineera wishes to protect the integrity of Ka Mate, as well as the values that underlie it. He also wishes to ensure that in circumstances where Ka Mate is performed respectfully and with the consent of his iwi, Ngāti Toa receives at least some of the commercial benefits that might flow from that use. He argued that Ngāti Toa’s kaitiakitanga [guardianship] in respect of Ka Mate should be recognised in law.

 In this Act, the Crown acknowledges the significance of Ka Mate as a taonga of Ngāti Toa Rangatira and as an integral part of their history, culture and identity. The Act also provides that any publication of Ka Mate for commercial purposes and communication of Ka Mate to the public must include a statement that Te Rauparaha was the composer of Ka Mate and a chief of Ngāti Toa Rangatira. This legislation will be reviewed after 5 years of enactment to consider whether the interests of Ngāti Toa Rangatira relating to Ka Mate are sufficiently protected.

One thing that is obvious but interesting in the case of Ka Mate is that Ngāti Toa are not attempting to prevent the haka being performed, but rather wish to ensure that its integrity is maintained and that the mana of Te Rauparaha and Ngāti Toa are acknowledged. According to media reports, Ngāti Toa have good relationships with the NZ Rugby Football Union, other national sports teams, and institutions such as the army and police who use Ka Mate.

This Act responds to some of the particular issues faced by Ngāti Toa in relation to Ka Mate. However, these issues around Ka Mate also point to some of the wider questions about the protection of traditional knowledge within the context of an intellectual property rights system primarily designed to address other types of issues.

Year 172

The 172^nd year in the life of the Treaty of Waitangi saw a number of major developments with significant potential to re-shape the Māori-Crown partnership.  These developments have taken place in all branches of government –  important decisions from the Supreme Court and Court of Appeal, as well as a major report from the Waitangi Tribunal; the new foreshore and seabed legislation and something of a reconfiguration of Māori representation in Parliament; and the establishment of a Ministerial review of constitutional issues.

2011 was, of course, an election year.  But, by the time of the General Election in November, an important change had already taken place amongst the Māori seats.  Early in the year, Hone Harawira, the Member for Te Taitokerau, was suspended from the Māori Party caucus after publicly criticizing the Marine and Coastal Area Bill and the Māori Party’s support of that legislation.  He resigned from the Māori Party, and re-won the his seat standing as an independent at the subsequent by-election. He was returned again as the Member of Parliament for Te Taitokerau in the General Election, this time as leader of the newly formed Mana Party. The Mana Party list included a number of prominent left-wing activists such as Sue Bradford and John Minto, as well as high-profile Māori advocates, many of whom were formerly active within the Māori Party.   Although the Mana Party did not achieve enough support to bring a second MP into Parliament, the very formation of the party, along with the defeat of the incumbent (and hard-working) Maori Party MP, Rahui Katene, in Te Tai Tonga (to Labour’s Rino Tirikatene) suggest Māori voters have been concerned by the often cosy relationship between the Māori Party and the National Party.

The new foreshore and seabed legislation, which was the ostensible catalyst for the split in the Māori Party, was duly enacted and now sits on the statue books as the Marine and Coastal Area (Takutai Moana) Act 2011.  I have posted a number of times on this site about aspects of this legislation, including the apparently cavalier attitude of National Party members of the Māori Affairs Select Committee to the final shape of the legislation.  It is true that the Marine and Coastal Area Act makes some important symbolic changes and some other minor improvements to the regulation of the foreshore and seabed, but the basic framework of the previous legislation remains largely untouched.  As I have noted previously, the Act maintains many of the discriminatory aspects of the Foreshore and Seabed Act.  It still, explicitly, treats Maori interests as a lesser form of title than freehold title and until the Government’s attitude to Maori customary interests changes, it is going to be difficult to achieve a durable resolution of these issues and impossible to achieve one that is just.

The state legal system’s recognition of Māori custom and customary rights was also the subject of the Court of Appeal’s decision in Takamore v Clarke.  In this case, the Court essentially had to determine whether the whānau of James Takamore (deceased) had the right, by virtue of Tuhoe custom, to take the body of the deceased, as they had done, to be buried on his ancestral lands. The Court of Appeal confirmed that the executor of a will is entitled to make the final decision about where the testator is to be buried. The Court reached this result by two different routes reflected in the joint judgment of Justices Glazebrook and Wild and the separate judgment of Justice Chambers.  Justices Glazebrook and Wild reasoned that the Tūhoe burial custom that allows the body of the deceased to be taken by force without the agreement of the testator cannot be recognised by the common law because it is repugnant to a “root” principle of the legal system, the rule of law.  However, Glazebrook and Wild also set out what they describes as “a more modern approach to customary law” and found that the common law has developed to a point where executors should take indigenous customs relating to burial into account under the common law.  Justice Chambers agreed that the appeal should be dismissed though he did not comment on whether the Tūhoe burial custom could be recognised but rather reasoned that the custom did not apply to Mr Takamore, whether or not it could be recognised at common law.

Another decision that is of particular relevance to Māori that was also delivered in 2011 was the Supreme Court’s decision in Haronga v Waitangi Tribunal.  Alan Haronga had originally made an application for an urgent hearing of the Waitangi Tribunal in September 2009 in light of Crown advice that the Crown and Te Manu Whiriwhiri (a body comprised of several mandated groups from throughout the Gisborne region) intended to initial a deed of settlement in December 2009.  Mr Haronga sought an urgent hearing before the Waitangi Tribunal to address remedies for Treaty breaches specifically in relation to the Mangatu State Forest.  Mr Haronga argued that redress in relation to these breaches should be addressed through the Mangatu Incorporation and that none of the groups within Te Manu Whiriwhiri had the mandate to agree a settlement in relation to those specific issues.  Judge Clark, in the Waitangi Tribunal, declined the application for an urgent hearing, but the Supreme Court disagreed with the three key planks of Judge Clark’s reasons and the majority considered that Judge Clark had no choice but to direct an urgent hearing of Mr Haronga’s application and so ordered the Tribunal to undertake such a hearing (with Justice William Young dissenting on the issue of remedy). The majority’s decision is notable for requiring the Tribunal to undertake an urgent hearing of Mr Haronga’s application and make a decision as to what, if any, remedy is appropriate in this case.  This, in itself, is likely to have considerable ramifications for the way in which the Tribunal approaches urgency applications in future, particularly those that relate to remedies. 

The Waitangi Tribunal itself released a major report in 2011.  Ko Aotearoa Tēnei, the Tribunal’s report into the Wai 262 claims was released on 2 July 2011 and marked the conclusion of the Waitangi Tribunal’s first whole-of-government inquiry. The report makes detailed recommendations for changes in law, policy, and government practice on matters relating to intellectual property and traditional knowledge, genetic and biological resources of indigenous species, Māori communities relationship with the natural environment in the context of both environmental planning and conservation, the Māori language, museums and cultural heritage, traditional Māori healing and medicine, and the role of Māori in the making of international instruments which affect their interests. The Tribunal’s report and the findings and recommendations within are now with the New Zealand Government, while officials formulate a response. While the Government is under no legal obligation to accept the Tribunal’s findings or to adopt its recommendations there is, no doubt, political pressure currently being exerted on the Government to, on the one hand, implement the Tribunal’s recommendations, and, on the other hand, to reject those recommendations.  Yet, whatever the official response from government, this report will remain a hugely significant document because it articulates a conceptually coherent vision of a state founded in the worldviews of two distinct cultures.  Importantly, it goes beyond simply articulating a vision, but suggests a range of practical law and policy mechanisms by which that vision might be realized.

While 2011 saw the conclusion of the Tribunal’s Wai 262 inquiry, another potentially significant process is just beginning.  The announcement of the Government’s ‘consideration of constitutional issues’ was actually made in December 2010, though the formal appointment of a constitutional advisory panel did not take place until August 2011.  The panel is comprised of a number of eminent New Zealanders, and roughly half the members are Māori.  It is notable, however, that there are no constitutional lawyers on the panel.  The panel has been appointed to:

stimulate public interest in, and awareness of, New Zealand's constitutional arrangements and issues arising. 

establish a forum to develop and share a range of ideas on constitutional issues, including seeking the views of all New Zealanders, including Maori, in a manner that is reflective of the Treaty of Waitangi relationship. 

develop an understanding of the range of perspectives on New Zealand's constitutional arrangements, including the range of topical issues requiring further discussion, debate and policy consideration.

Meanwhile, the National Iwi Chairs Forum has established an independent constitutional working group to develop recommendations for a constitutional model that is based on tikanga Māori, the Declaration of Independence and the Treaty of Waitangi.  The Working Group is quite distinct from the Government review and has much wider terms of reference.  Convened by Māori advocate and constitutional law expert Moana Jackson, the Working Group will be undertaking a process of engaging Māori in discussion of constitutional matters beginning this year.

With these major constitutional conversations taking place, the 173^rd year in the life of the Treaty of Waitangi is shaping up to be another interesting one in the development of the Treaty relationship.

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”.

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.