Calling all champions for Indigenous Worldview

An indigenous perspective has much to offer Aotearoa as we search our nation’s soul for a better way.

As Tangata Whenua of Aotearoa, my tūpuna already had a longstanding connection to this land many centuries before the European colonials arrived to our shores. We went from being the dominant peoples of this land with our own distinct living systems – to a minority collective of people living under infrastructures which oppressed and removed our own. This process of historical and ongoing colonisation, alongside our ancestor connections, is part of what makes us the indigenous people of Aotearoa.

 In 2010 New Zealand finally (sigh) endorsed the United Nations Declaration on the Rights of Indigenous Peoples (Declaration). This Declaration is the culmination of over two decades of rigorous debate among native/indigenous peoples from around the world. The United Nations said it was “a landmark declaration that brought to an end nearly 25 years of contentious negotiations over the rights of native people to protect their lands and resources, and to maintain their unique cultures and traditions.”

So I celebrated our State’s eventual endorsement in that bittersweet ‘better late than never’ sort of a fashion. My main mihi at the time was for the many natives who had literally given their blood to this affirmation of indigenous rights. There had been much ado over almost every single word in this document – indeed the saga of the letter ‘s’ being placed at the end of the word ’People’ in the Declaration title is worthy of a documentary in itself.

Given NZ’s initial and staunch opposition to the Declaration and a general history of Crown refusal to honour Tangata Whenua sovereignty – I always knew it would be up to us to give this landmark moment any enduring teeth. What I think is useful for Aotearoa is to truly investigate the indigenous worldview that such a Declaration aims to protect, as an essential part of our community fabric going forward.
Article 3 of the Declaration says: “Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.”

Recent political polling suggests that there are enough people questioning the current political, social and economic approaches being adopted for our nation. I think now is a good time for us to bury ourselves in some fundamental discussions around what a better nation would look like and how indigenous self-determination can play a vital part in that. As the current world market free-trade capitalist approach is being called into question, we are starting to look seriously at alternatives. Um – over here!

While it is true that Iwi and Hapū ourselves need to un-learn and re-learn some stuff, there is still enough to start working on with some viable options for honest collective health. For a start our reliance on global financing could lead us up the creek as is happening to other economies. As a little country tucked away in the Pacific, we could look strongly at protecting our unique environmental riches as a fundamental part of economic sustainability. Never mind Tino Rangatiratanga for Iwi – how about we understand that our government is slowly relinquishing its own authority to overseas imperialist economic powers!
The Declaration lends support for indigenous leadership on this very environmental resource protection in Article 26:

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied or otherwise used or acquired.

2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess by reason of traditional ownership or other traditional occupation or use, as well as those which they have otherwise acquired.

3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned.

In the above article the definition of ‘protection’ and ‘development’ of resources is diverse among Hapū. But I believe we have a unique responsibility to ensuring our long line of indigenous mokopuna get to play and fish in clean seas and beaches, hunt/eat and heal from bushy forests, breathe in fresh air, drink clean water and marvel at the unspoiled beauty of all of that. But here’s the thing – everyone else’s descendents will reap that protected environment too.

On the “sustainable living” push.
Yes we also have to do the hard yards to minimise our current absurd energy use and seek alternatives to illogical fossil fuel exploitation. Again I see the Declaration supporting all opportunities for us to turn our habits towards the wisdom of our tūpuna. There was a time when we could do it - live sustainably. There are a number of articles that emphasise the retention, development and evolution of our world views and knowledge to get us back towards that place of existence.

Of course the UN Declaration on the Rights of Indigenous Peoples must be campaigned for alongside He Whakaputanga 1835 Declaration of Independence, the Treaty of Waitangi and the current route for NZ’s Constitutional Transformation. The Declaration also stands as part of a whole host of international human rights documents under the United Nations framework. We must insist that the Declaration be considered in conjunction with and in full support of all of those discussions. It is up to us to assert the ‘practical effect’ of the Declaration that our Prime Minister crudely tried to play down at the time of government endorsement. It is the very practical effect of upholding the rights of this Declaration which I strongly believe has promise for Aotearoa and all the peoples in it!

I have focussed on only a few examples of how the United Nations Declaration on the Rights of Indigenous Peoples is an instrument of strong advocacy for how our nation can more positively develop from here. The beauty of the Declaration is that it is there for all of us to invoke. Previously I have talked about us not confusing Māori whakapapa for Māori advocacy. The adverse is also true. I have had the privilege of getting to know many a non-indigenous person living on this land who feels the essence of what our native truth is capable of. So the Declaration can help carve out that common ground among different peoples and can also be a catalyst for Tangata Whenua to re-inhabit our own ways of thinking and being. A starting point is for more of us to engage in the discussion around indigenous rights and responsibilities at all.

Calling all champions for indigenous worldview. Our future needs you now.

Marama Davidson
(Te Rarawa, Ngāpuhi, Ngāti Porou)

 

Comments on the water claim

John Roughan is a good columnist, but I think he misses the mark with this offering:

Protesters forget that Maori have to act in good faith too.

(On the partnership principle): "rested on the premise that each party would act reasonably and in good faith towards the other within their respective spheres".

Lands, forests, fisheries and treasured things were expressly in the Maori sphere. Government and good order were entrusted to the Crown. Cooke stressed that the obligation to act "reasonably and in good faith" was reciprocal. It applied no less to Maori than the Government.
Is it "reasonable" of them to ask that Meridian, Genesis, Mighty River Power and Solid Energy should continue to be bound by an obligation on the Crown to observe Treaty principles? I think so; the Crown will remain their major shareholder.

Is it reasonable that those companies might be obliged to consider Maori interests if they ever want to change the flow of rivers or drown land? I think so.

On the Maori side, is it acting "reasonably and in good faith" to invoke the Treaty simply to oppose partial asset sales? I don't think so.

Management of the state's assets is in the Government's sphere.

Protesters forget the Treaty cuts both ways. With good faith on both sides, the Government and the Maori Party can take another big step.

I don't agree. Maori are not invoking the Treaty for the sake of invoking the Treaty. Maori are concerned that 1) if state assets pass in to private hands the government’s ability to settle current and future claims will be affected AND 2) Maori, as well as the Crown, are unsure what rights, if any, Maori have to water resources (i.e. ownership and management rights).

Selling state assets while question 2 is still under consideration breaches the principle of partnership and good faith. The Waitangi Tribunal holds that the Treaty guarantee of rangatiratanga requires a high priority for Maori interests where proposed works may impact on Maori taonga. With this in mind, the Crown is, arguably, obliged to consider Maori interests above private interests. The Crown is also under a duty to actively protect and give affect to property rights, management rights, Maori self regulation, tikanga Maori and the claimants (i.e. Maori) relationship with their taonga. In light of this obligation, it would be inconsistent with the principles of the Treaty for the government to ram ahead with partial privitisation without 1) determining Maori interests 2) giving those interests a “high priority” and 3) actively protecting those interests.

The duty to actively protect is a serious one. New Zealand’s greatest jurist, the late Sir Robin Cooke, held that the Crown’s obligation is not “merely passive but extends to active protection of Maori people in the use of their lands and waters to the fullest extent practicable”.

The UN Declaration on the Rights of Indigenous People also supports this position:

States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

To be fair, the government is consulting Maori and credit to them for doing so. First criteria satisfied. However, article 32(2) – i.e. the article above – sets a requirement for “consent”. Of course, this isn’t binding on the government, but it will guide and inform any decision of the Court.

There is legal authority to support the proposition that Maori have rights to water. Lord Cooke’s obiter statement above, where he implies that Maori have rights to water, is an example. The article above also signals that the UN believes indigenous people have rights to water too. Most significantly though, the Lands case held, roughly speaking, that if the Crown was going to transfer land that was potentially subject to a claim the Crown must take steps to ensure its ability to meet the claims is not adversely affected.

John Key seems to think that no one can own water. Audrey Young's excellent overview holds that this position is correct at common law. However, Maori can, and Te Arawa is an example, own beds, banks, and potentially the airspace above. This, however, ignores the fact that Maori did not distinguish between river beds, lake banks and so on. Beds, banks and the water itself were one in the same – not constituent parts. The Courts can take this into account, and even incorporate this notion into the common law (assuming it does not offend any common law principles), however the Courts have proved reluctant to incorporate Maori customary law into the common law (the recent Takamore case is an example). As an aside, this is unfortunate and, in my opinion, hinders the development of a uniquely New Zealand legal system.

Most significantly, as No Right Turn points out, Maori water rights could persist under the doctrine of aboriginal title, or customary title as it is more commonly known in New Zealand. Customary title is a lesser form of property right than fee simple title (freehold title) and only exists if it has not been extinguished. That's the crux of it there, I think. Was Maori customary title extinguished? I agree with I/S in that I think customary title has been extinguished through various pieces of legislation. I/S holds that this is a breach of article 2 of the Treaty which guarantees Maori rangatiratanga. Of course, we have to look at this through the principles of the Treaty rather than applying the strict meaning of the text so I'm not so sure this is correct.  

For the sake of this post, let’s accept that Maori do not have ownership rights. The Crown is sovereign and, under the Treaty principles, has the right to govern. Okay, Fair enough. Maori do, however, have management rights. The Crown has already explicitly recognised these rights under the Waikato river co-management deal. Ngati Tuwharetoa, Te Arawa, Raukawa and Tainui all have co-management arrangements with the Crown. Ngati Maniapoto will also, if they have not already, sign a similar deal.

Considering this, at the very least Maori have management rights and the Crown cannot move forward with partial privatisation until those rights are clarified and a regime to recognise and implement them is put in place.

Anywho, back to the main thrust of Roughan piece (you can probably tell I’m not so concerned about his column I just wanted to use it as a springboard for this discussion). I respect John Roughan, but I think he misunderstands the nature of the partnership principle. Maori and the Crown are under different, but in a few instances similar, obligations. The Crown’s obligations are similar to a fiduciary duty. This means the Crown has a legal and ethical duty as the dominant partner. Therefore, if the Crown’s duty is analogous to a fiduciary one, then the Crown must act to a stricter standard. Maori operate under a less onerous standard.

Ultimately, I think Roughan’s piece is based on a shaky premise. Maori are not opposing for the sake of opposing. There are legitimate concerns around Maori rights and the Crown’s actions. Surely, if Maori were opposing for the sake of it, then other iwi would join the fight. This isn’t the case though, in fact iwi have refused to join the legal battle, preferring instead to take a more diplomatic route. Whether this is the right choice, well time will tell, in any circumstance I think it signals the growing maturity of Maori as a people. Then again, it could mean that the iwi elite are trying to gun for private gains for themselves and their iwi, rather than Maori as a whole.