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Ko Aotearoa Tenei: Law and Policy Affecting Maori Culture and Identity

Published online by Cambridge University Press:  16 December 2013

David V. Williams
David V. Williams*
Affiliation:
Faculty of Law, University of Auckland. Email: [email protected]
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Abstract

In July 2011 what is commonly known as the Wai 262 Report was released. After a protracted series of hearings, dating back to 1997, the New Zealand Waitangi Tribunal has at last reported on the some of the wide range of issues canvassed in those hearings. Three beautifully illustrated volumes contain a large number of recommendations in what is described as a whole-of-government report. This article notes earlier comments on Wai 262 in this journal and reframes what is often known as the ‘Maori renaissance’ from which this claim emerged in 1991. The Tribunal decided not to discuss historical aspects of the evidence presented, except for the Tohunga Suppression Act 1907, as this was not ‘an orthodox territorial claim’ allowing the Crown to negotiate with iwi for a Treaty Settlement. Of great significance for this readership, the Tribunal staunchly refused to entertain any discussion of ‘ownership’ claims to Maori cultural property. Rather, the Tribunal focussed on ‘perfecting the Treaty partnership’ between the two founding peoples of Aotearoa New Zealand. Its report is concerned with the future and with the Treaty of Waitangi when the nation has moved beyond the grievance mode that has dominated the last quarter century. The partnership principles are pragmatic and flexible. Very seldom indeed can Maori expect to regain full authority over their treasured properties and resources. The eight major topics of the chapters on intellectual property, genetic and biological resources, the environment, the conservation estate, the Maori language, Maori knowledge systems, Maori medicines and international instruments are briefly summarised. The author is critical of this Tribunal panel's timidity in refusing to make strong findings of Treaty breach as the basis for practical recommendations—the approach usually adopted in previous Tribunal reports on contemporary issues. The article then notes that the Wai 262 report featured significantly in 2012 hearings on Maori claims to proprietary rights in freshwater resources. It featured not to assist the freshwater claimants, however, but as a shield wielded by the Crown to try to deny Maori any remedy.The low bar of partnership consultations encouraged by the Wai 262 report was congenial for Crown counsel seeking to undermine Maori claims to customary rights akin to ‘ownership’ of water. The 2012 Tribunal panel, under a new Chief Judge, restrictively distinguished the Wai 262 report and found in favour of Maori rights to water. In conclusion, the article notes the irony of a government following neo-liberal policies in pursuing a privatisation strategy and yet relying on ‘commons’ rhetoric to deny Maori any enforceable rights to water; and of indigenous people arguing for ownership property rights to frustrate that government's policies.

Type
Research Article
Information
International Journal of Cultural Property , Volume 20 , Issue 3 , August 2013 , pp. 311 - 331
Copyright
Copyright © International Cultural Property Society 2013 

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References

Baker, Jade Tangiahua. “Te Pahitaua: Border Negotiators.” International Journal of Cultural Property 15 (2008): 141–57.CrossRefGoogle Scholar
Busse, Mark. “Epilogue: Anxieties About Culture and Tradition—Property as Reification.” International Journal of Cultural Property 16 (2009): 357–70.CrossRefGoogle Scholar
Davies, Piers, and Myburgh, Paul. “The Protected Objects Act in New Zealand: Too Little, Too Late?” International Journal of Cultural Property 15 (2008): 321–45.CrossRefGoogle Scholar
Durie, Mason. Nga Tini Whetu: Navigating Maori Futures. Wellington: Huia, 2011.Google Scholar
Frame, Alex. “Property and the Treaty of Waitangi: A Tragedy of the Commodities?” In Property and the Constitution, edited by McLean, Janet, 224–38. Oxford and Portland: Hart, 1999.Google Scholar
Goldsmith, Michael. “Who Owns Native Nature? Discourses of Rights to Land, Culture, and Knowledge in New Zealand.” International Journal of Cultural Property 16 (2009): 325–39.CrossRefGoogle Scholar
Harris, Jim. “Is Property a Human Right?” In Property and the Constitution, edited by McLean, Janet, 64–87. Oxford and Portland: Hart, 1999.Google Scholar
Jones, Carwyn. “Waitangi Tribunal, Treaty Based Partnership.” Maori Law Review, (2012) February: 1–20.Google Scholar
Kawharu, I. H. “Translation of Maori Text.” In Waitangi: Maori and Pakeha Perspectives of the Treaty of Waitangi, edited by Kawharu, I. H., 319–21. Auckland: Oxford University Press, 1989.Google Scholar
Kelsey, Jane. Rolling Back the State: Privatisation of power in Aotearoa/New Zealand. Wellington: Bridget Williams Books, 1993.CrossRefGoogle Scholar
Mikaere, Ani. Colonising Myths—Maori Realities: He Rukuruku Whakaaro. Wellington: Huia, 2011.Google Scholar
New Zealand Ministry for Culture and Heritage. “The Treaty in Practice.” http://www.nzhistory.net.nz/politics/treaty/the-treaty-in-practice/early-crown-policy (2012; accessed 10 July 2013).Google Scholar
New Zealand Ministry of Justice. “Terms of Reference—Consideration of Constitutional Issues.” http://www.justice.govt.nz/policy/constitutional-law-and-human-rights/consideration-of-constitutional-issues-1/terms-of-reference-constitutional-advisory-panel (2008; accessed 10 July 2013).Google Scholar
“Ngai Tuhoe: Tuhoe Settlement Offer.” http://www.ngaituhoe.iwi.nz/Settlement/T%C5%ABhoeSettlementOffer.aspx (2012; accessed 10 July 2013).Google Scholar
Ngapuhi Speaks: He Wakaputanga and Te Tiriti o Waitangi. Whangarei: Te Kawariki & Network Waitangi, 2012.Google Scholar
O'Keefe, Patrick J. “Maoris Claim Head.” International Journal of Cultural Property 1 (1992): 393–94.CrossRefGoogle Scholar
Paterson, Robert K. “Protecting Taonga: The Cultural Heritage of the New Zealand Maori.” International Journal of Cultural Property 8 (1999): 108–32.CrossRefGoogle Scholar
Paterson, Robert K. “The Protection of Cultural Property in Internal Law.” International Journal of Cultural Property 6 (1997): 267–77.CrossRefGoogle Scholar
Recht, Jo. “Hearing Indigenous Voices, Protecting Indigenous Knowledge.” International Journal of Cultural Property 16 (2009): 233–54.CrossRefGoogle Scholar
Ruru, Jacinta. “Maori Rights to Water.” Maori Law Review (September 2012): 8–18.Google Scholar
Stone, C. D. “Should Trees Have Standing? Towards Legal Rights for Material Agents.” Southern California Law Review 45 (1972): 450–501.Google Scholar
Van Meijl, Toon. “Maori Intellectual Property Rights and the Formation of Ethnic Boundaries.” International Journal of Cultural Property 16 (2009): 341–55.CrossRefGoogle Scholar
“Wai 262: Taonga, Kaitiaki.” http://wai262.weebly.com/index.html (accessed 10 July 2013).Google Scholar
Waitangi Tribunal. The Crown's Foreshore and Seabed Policy (Wai 1071, 2004).Google Scholar
Waitangi Tribunal. He Maunga Rongo: The Report on Central North Island Claims, Stage 1 (Wai 1200, 2008).Google Scholar
Waitangi Tribunal. Ko Aotearoa Tenei: A Report into Claims Concerning New Zealand Law and Policy Affecting Maori Culture and Identity (Wai 262, 2011).Google Scholar
Waitangi Tribunal. Motunui-Waitara Report (Wai 6, 1983).Google Scholar
Waitangi Tribunal. Muriwhenua Fishing Claim (Wai 22, 1988).Google Scholar
Waitangi Tribunal. Ngai Tahu Sea Fisheries (Wai 27, 1992).Google Scholar
Waitangi Tribunal. The Stage 1 Report on the National Freshwater and Geothermal Resources Claim (Wai 2358, 2012).Google Scholar
Waitangi Tribunal. Te Ika Whenua Rivers Report (Wai 212, 1998).Google Scholar
Waitangi Tribunal. Te Reo Maori Report (Wai 11, 1986).Google Scholar
Waitangi Tribunal. Te Roroa Report (Wai 38, 1992).Google Scholar
Waitangi Tribunal. The Whanganui River Report (Wai 167, 1999).Google Scholar
“Whanganui Iwi and the Crown: Tutohu Whakatupua [Whanganui River Agreement].” http://www.nz01.2day.terabyte.co.nz/ots/DocumentLibrary%5CWhanganuiRiverAgreement.pdf (30 August 2012; accessed 10 July 2013).Google Scholar
Williams, David V.Crown Policy Affecting Maori Knowledge Systems and Cultural Practices. Wellington: Waitangi Tribunal, 2001.Google Scholar
Williams, David V.Matauranga Maori and Taonga: The Nature and Extent of Treaty Rights Held by iwi and hapu in Indigenous Flora and Fauna, Cultural Heritage Objects, Valued Traditional Knowledge. Wellington: Waitangi Tribunal, 2001.Google Scholar
Williams, Joe. “Treaty Debates: Pathway to Partnership—The WAI 262 Report.” http://www.tepapa.govt.nz/whatson/allevents/pages/TreatyDebates26JAN.aspx (26 January 2012; accessed 10 July 2013).Google Scholar