Te Pae Tawhiti: chance for Māori and the Crown to reconcile after Wai 262

Opinion: With mātauranga Māori and taonga, it’s time for Māori and the Crown to do the mahi – together, writes Jayden Houghton. The formal response to the Wai 262 claim is a good first step.

Jayden Houghton photographer at the University of Auckland in front of a tree.
Jayden Houghton, Lecturer in Law. Photo: Billy Wong

I would like to talk about Te Pae Tawhiti and the opportunity
it provides for Māori and the Crown to reconcile after Wai 262, the Waitangi
Tribunal claim concerning law and policy affecting Māori culture and identity.
The claim, lodged in 1991, was one of the largest and most complex in the Tribunal’s
history. The Tribunal released its report on the claim in 2011.

Te Pae Tawhiti, proposed by the Labour-led Government in
August 2019, is a work programme to address the Crown’s breaches of its Treaty
guarantee to allow Māori to exercise tino rangatiratanga over our mātauranga
Māori and taonga. Te Pae Tawhiti provides a significant opportunity for Māori
and the Crown to develop laws, policies and frameworks to address these issues.
I think Māori ought to engage. The Labour-led Government seems to be acting in
good faith. And, anyway, no government will be able to develop a fair and
durable outcome without our imagination, agency and belief in the Treaty
partnership. But Māori should engage cautiously.

For a few years now I have been monitoring the government’s
response to the Wai 262 report by way of requests under the Official
Information Act 1982. It might surprise you to learn that the government was
working on a response to Wai 262 a decade ago. In 2010, the Office of the
Attorney-General proposed a ministerial group, comprised of cabinet ministers
from lead agencies, to lead a “whole of government” response to the report.
Compare this with Te Pae Tawhiti, in which the government proposes a
Ministerial Oversight Group, comprised of cabinet ministers from lead agencies,
to lead a “whole of government” response to the report.

The truth is that Te Pae Tawhiti is similar to numerous work
programmes proposed to cabinet during the National Government. Unfortunately,
internal memos, papers and stocktakes confirm that activities related to
mātauranga Māori and taonga during that government were always ad hoc and never
intended to be part of a “whole of government” response. The cost of the
National Government ghosting Māori and postponing a work programme that was
more or less in its present form a decade ago is yet to be calculated.

Māori need to be cautious about the three-year election cycle and the potential for a new government to change the policy agenda. The name Te Pae Tawhiti will survive a change of government but if you expect it to retain its mana, you have not been paying attention.

Jayden Houghton (Rereahu Maniapoto) Lecturer, Auckland Law School University of Auckland

Unlike the National Government, the Labour-led Government
has committed to addressing these issues with its formal, public response to
the Wai 262 claim. So, I think Māori Development Minister the Hon Nanaia Mahuta
should be commended for progressing this mahi. This government at least appears
to be willing to understand the issues and bold enough to take the first public
steps towards a fair and durable outcome.

But Māori need to be cautious about the three-year election
cycle and the potential for a new government to change the policy agenda. The
name Te Pae Tawhiti will probably survive a change of government, but if you
expect it to retain its mana you have not been paying attention.

It will be difficult to develop a fair and durable outcome
on such a complex and contentious issue. But fair and durable the outcome must
be. In presenting my vision for the government’s response at the Ngā Taonga
Tuku Iho Conference on Māori Cultural and Intellectual Property Rights in 2018,
I suggested that the Wai 262 aftermath is a cautionary tale about what happens
when a proposal to address Māori-Crown issues fails to enable Māori and the
Crown to reconcile: the government was reluctant to engage with the report; and
most Māori were disillusioned by what we perceived to be a lost opportunity. In
short, without reconciliation, there can be no fair and durable outcome and the
same issues will be constantly re-litigated, as they are today.

It is worth remembering that the Wai 262 claimants did not
want the Tribunal to propose its own frameworks for addressing the issues. The
claimants only asked the Tribunal to make findings of fact that would establish
the Crown’s Treaty breaches with respect to mātauranga Māori and taonga, and
empower the Treaty partners to develop substantive and procedural frameworks
together. But the Tribunal went ahead nonetheless. In a roundabout way, we are
now at a point where Māori and the Crown can develop those frameworks together.

The substantive framework must enable Māori to exercise tino
rangatiratanga – a degree of authority which incorporates a spectrum of rights
and responsibilities from ownership and control, to co-ownership and
co-management, to consultation – over our mātauranga Māori and taonga. Māori
and the Crown will only reconcile if the full spectrum of tino rangatiratanga
rights and responsibilities is available to Māori. It will not always be
appropriate for Māori to claim ownership or control of mātauranga Māori or
taonga. But in some cases this will be what the kaitiaki relationship requires.

The procedural framework must empower the Treaty partners to
develop the substantive framework that enables them to reconcile. The government
is presenting Te Pae Tawhiti as a Matike Mai-esque framework with separate
Māori and Crown spheres that overlap. If the overlap represents only that the
Crown will sometimes consult with Māori, Te Pae Tawhiti will surely fail. But
if the overlap is a relational sphere in which the Treaty partners make
decisions together, the frameworks could truly enable Māori and the Crown to
reconcile in this space.

Jayden Houghton (Rereahu Maniapoto) is a lecturer in the Faculty of Law.

The views in this article reflect personal opinion and are not necessarily those of the University of Auckland.

What is mātauranga Māori?

Mātauranga Māori refers to Māori knowledge - the body of knowledge originating from Māori ancestors, including the Māori world view and perspectives, Māori creativity and cultural practices.