Anne Salmond: Injustice is like a whale

In 1990, Pā Henare Tate, a well-known priest in the Hokianga, wrote a beautiful article about Te Tiriti for New Zealand Geographic. In it, he discusses the tapu and mana of each person, which springs from the life force (mauri) of the world itself – the sun, moon and stars, the earth (Papatuānuku) and sky (Ranginui), the ocean (Tangaroa) and forests (Tāne).

"Te wa – the journey of life", he says, "is filled with opportunities to address the tapu of our fellow travellers". There are three ways to do this, he adds, "through tika (justice), pono (integrity, or faithfulness to tika) and aroha (love)".

In his article, Pā Tate describes the marae as a place where hosts and visitors, men and women, ancestors and descendants come together to acknowledge the tapu and mana of others. In the rituals that follow, the tapu of the visitors is lifted:

Visitors (manuhiri) have their own tapu, of course, but in this context they are foreigners, an unknown quantity. Who can tell whether they are friend or foe?

…The kuia calls her greeting. In some situations a warrior issues a fiery challenge and lays down the wero, dart. The visitors respond according to the protocol of the marae with korero (speech) and waiata (song), after which the hongi (embrace) lifts the tapu, erasing the status of 'manuhiri’ and making the visitors one with the tangata whenua — the people whose turangawaewae (identity) is at that marae.

The visitors are now hunga kainga (people of the house).They share their hosts’ hospitality, protection and mana.

In 1840, he argues, when Te Tiriti o Waitangi was signed, the incoming settlers were seen as manuhiri: "The Treaty was a vehicle by which the designation of manuhiri could be lifted. However, though the document was signed, the treaty was not implemented. Tika and pono were violated, and aroha fled."

Instead of tika (justice), there was injustice; instead of pono (integrity, truth) there was deceit; instead of aroha, there was betrayal.

In his article, Pā Tate insists that the only way forward is through acknowledgement and encounter. Without this, "injustice will never be truly resolved. Like a whale, it will disappear for a time, only to surface again seeking the pure oxygen of tika, pono and aroha". Only when acknowledgements are given, and injustices are resolved, can the manuhiri become hau kainga, at home in the land.

When the Waitangi Tribunal was established in 1975, many of these lessons were taken to heart. The Tribunal itself included both Māori and non-Māori members in a roughly equal balance (although this is no longer the case), and Tribunal hearings were held on marae. Because many eminent kaumātua and kuia were involved in the hearings, values such as those expressed by Pā Tate helped to shape the Treaty settlements.

At the same time, lawyers were deeply involved on both sides of the debates, and legal framings helped to shape the Treaty settlement process. No doubt this was proper, since Te Tiriti itself was signed in large measure to bring Rongo (peace) and Atanoho (tranquil living) to indigenous persons and incoming settlers who in 1840 were "living without law".

Over time, however, as lawyers and the law became increasingly dominant in the Treaty process, other New Zealanders were set aside. In part this was influenced by the canonical ‘Lands’ case judgment in 1987, in which Sir Robin Cooke and his fellow judges in the Court of Appeal rewrote Te Tiriti as a "partnership between races", or "between Pākehā and Māori", or between "the Crown and the Māori race".

On the one hand, the concept of ‘race’ was introduced, although it is nowhere to be found in the text of Te Tiriti. This is a colonial idea with an ugly history, associated with slavery, genocide and the dehumanisation of others, and utterly inimical to respecting their 'tapu and mana'.

As it escaped into the public arena, the idea of ‘two races’ inevitably invoked racial framings on both sides. At the extremes and online, these are becoming increasingly toxic and dangerous, a process described by political scientists McCoy and Somer as "pernicious polarisation":

Leaders and supporters alike describe their own and opposing political groups in black and white terms as good and evil. They ascribe nefarious, often immoral, intentions and demonstrate prejudice and bias against those in the opposing camp

…. In polarising settings, people who hold moderate opinions and maintain interests and identities that cut across the dividing line are increasingly ostracised, diminishing any chance of dialogue between opposing groups.

…. Pre-existing binary narratives of group belonging and citizenship make polarisation more devastating when it occurs.

This is flatly contrary to Pā Tate’s account of the way groups are bound together during the ceremonial exchanges on marae.

On the other hand, the idea of Te Tiriti as a partnership between "the Crown and the Māori race" marginalises most other New Zealanders from the Treaty relationship. The intent of Te Tiriti, however, was to uphold the tapu and mana of all parties - the Rangatira, the hapū and tāngata māori (indigenous persons), with their tikanga, and the incoming settlers.

In the text of Te Tiriti, the role of Kāwanatanga – the government – is defined as a kai-wakarite (mediator, facilitator), to resolve disputes, ensure balance and to seek peace and tranquil living for all parties. It is not supposed to take over the exchanges.

Above all, the resolution of injustice under Te Tiriti requires acknowledgement and encounter ‘on the ground’. Yet at Waitangi Tribunal hearings, it is very uncommon to see non-Māori members of the local community present, and hearing the stories of past and present hurts and harms that must be addressed before justice can prevail.

By themselves, the Crown and its lawyers cannot create the ‘pure oxygen’ of tika, pono and aroha that is required to resolve these injustices. That is a responsibility of the wider community.

Racist attitudes do their damage at school, in the courts, in supermarkets and shops, at the local bank, in parties, on talk-back, online and in families - at the flax roots and grass roots of our small, intimate society.

In her speech at Tūrangawaewae in the weekend, the Prime Minister spoke of the need for leadership, and a vision that allows most New Zealanders to embrace Te Tiriti; and I agree. At present, however, this is not happening. Something has to change.

Instead of defining Te Tiriti as "a partnership between races", or "between the Crown and the Māori race", perhaps our leaders can take us on a journey that "acknowledges the tapu of our fellow travellers" and binds us together, in a spirit of kinship and mutual understanding.

Rather than seeing the Treaty as a "bridge" across a chasm of misunderstanding, in the spirit of "pernicious polarisation", perhaps Te Tiriti can be visualised as a meeting place where different groups of New Zealanders come together in a spirit of tika / justice, pono / truth, and aroha to share ideas, resolve injustices and seek peace with one another.

Instead of working towards separation, maybe we can try to "live together differently", respecting the tapu and mana of others.

As Pā Tate suggests, our vision of the future might be like a marae where all of our children and grandchildren, in all their differences, can find a place to stand, a turangawaewae of the heart.