November 2012 Māori Law Review
Matua Rautia: the Report on the Kōhanga Reo Claim
Waitangi Tribunal (Wai 2336, 2012)
The Waitangi Tribunal has released its report Matua Rautia: the report on the Kōhanga Reo claim. The report deals with a number of issues about the state of te reo Māori in kōhanga reo (Māori language preschools) and the Crown’s obligations to support the kōhanga reo movement and language revitalisation.
Download Matua Rautia: the report on the Kōhanga Reo claim here (4.45 MB PDF).
Overview and result
On 16th October 2012 the Waitangi Tribunal released its lengthy report Matua Rautia: the report on the Kōhanga Reo claim (“the Report”). The Report contains over 400 pages including appendices and deals with a number of issues about the state of te reo Māori in kōhanga reo (Māori language preschools) and the Crown’s obligations to support the kōhanga reo movement and language revitalisation.
In general terms, the Report addresses the claimants allegation that through various actions and omissions, the Crown had acted inconsistently with the principles of the Treaty of Waitangi causing a decline in kōhanga reo enrolments.
This article provides an overview of the claim. It provides background to the key issues and considers the Tribunal’s findings. In particular, it draws attention to Tribunal’s treatment of the principles of the Treaty of Waitangi in the context of kōhanga reo and language revitalisation generally.
In addition to emphasising the Crown’s existing obligations to support the revitalisation of te reo Māori (as espoused in the Broadcasting Assets line of cases and reiterated in the Tribunal’s report Ko Aotearoa Tēnei (Wai 262, 2011)), I suggest that the Report is significant because it provides a pathway forward for language revitalisation in the most important sector of the Māori-speaking population.
- First, it sends a clear signal that kōhanga reo are to be recognised as having some independence and control over their vision and how kōhanga reo develop to meet the needs of young Māori speakers.
- Secondly, the Report emphasises the importance of a workable relationship between Māori and the Crown to ensure the language survives.
- Thirdly the report highlights that te reo Māori must be appropriately resourced and prioritised when formulating policy and allocating funding.
On 25 July 2011 Te Kōhanga Reo National Trust Board (“the Trust”) filed a claim with the Waitangi Tribunal raising a number of issues about the Crown’s engagement with kōhanga reo.
The claimants essentially argued that the Crown had acted inconsistently with the principles of the Treaty of Waitangi by treating kōhanga reo as mainstream early childhood education providers, thereby preventing kōhanga reo from developing according to their own kaupapa (p 5-6, at [1.2.3]).
The claimants contended that the Crown’s actions had incentivised a departure of participants from kōhanga reo, and sought a recommendation from the Tribunal that kōhanga reo be given independent statutory recognition and that the Crown take steps to inform itself of the nature and purpose of kōhanga reo.
The claimants also sought recommendations that the Trust be recognised as kaitiaki of kōhanga reo and their kaupapa.
Framing the issues
The Tribunal dealt with the claim by posing four questions (p 74, at ch 3):
- To what extent has the Crown fulfilled its Treaty duties, if any, concerning te reo Māori education for children aged 0-5 years, kōhanga reo and the Trust?
- What is the relationship between kōhanga reo and preserving and protecting te reo Māori me ngā tikanga Māori?
- Is kōhanga reo and its kaupapa a taonga for passing on te reo, tikanga and wairua Māori to children aged 0-5 years, for whānau development, and for enabling Māori to be Māori?
- If so:
(a) Is the Trust kaitiaki of this taonga and what is the nature of that kaitiakitanga?
(b) Who exercises tino rangatiratanga in relation to kōhanga reo and its kaupapa?
The claimants’ arguments
The claimants, drawing on the Broadcasting Assets (New Zealand Māori Council v Attorney-General  1 NZLR 513) line of decisions, contended that the principle of partnership applies and that both parties were bound to act “reasonably, honourably and in the utmost good faith.”
The claimants argued that kōhanga reo, the Trust and its kaupapa were taonga.
While the claimants accepted the Crown’s right to govern, and acknowledged that Māori must co-operate and compromise in certain situations, the claimant’s contended the Crown had failed to discharge its duty to actively protect kōhanga reo, to allow Māori to exercise rangatiratanga over kōhanga reo, to formulate good, wise and efficient policy (as stated in Ko Aotearoa Tēnei) and to make informed decisions about kōhanga reo (p 75 at [3.1.1] and p 76-77 at [3.1.1]).
The claimants alleged, among other things, that the Crown had treated kōhanga reo as providers of early childhood education without addressing their particular needs and had failed to address declining kōhanga reo participant numbers (p 77 at [3.1.1]).
The claimants also drew attention to policy changes that have prevented kōhanga reo from operating effectively, such as the funding regime and the Crown’s failure to treat kaiako qualifications equally with those of other teachers at early childhood education (ECE) centres.
The Crown’s arguments
While the Crown accepted it had obligations to the language, it rejected the argument that kōhanga reo were taonga.
The Crown also argued that the Trust was not the Treaty partner. Rather, the Crown had to manage a number of Treaty relationships with other Māori groups who had an interest in the revitalisation of te reo Māori. The Crown’s obligation was to accommodate these interests “in reasonable ways, providing it acts fairly and in good faith” (p 78 at [3.1.2]).
The Crown contended a “relational analysis” was appropriate, and the Crown was entitled to take into account the economic efficiency of different funding proposals and structures.
The Crown urged against adopting an approach based on rangatiratanga, suggesting instead a “mutually engaged approach” that did not rely on categorising one group as a partner or their interest as a taonga.
The Tribunal found that the Treaty principles most relevant to the claim were the principles of partnership, kāwanatanga and tino rangatiratanga.
The principle of partnership requires the parties to act with “utmost good faith, reasonableness, mutual cooperation, and trust” (p 89 at [3.2.4]).
As corollaries of the partnership principle, kāwanatanga and tino rangatiratanga were also relevant.
Kāwanatanga requires the exercise of responsible and effective government in exchange for the right to govern and the active protection of taonga. The Crown’s kāwanatanga is subject to the guarantee of tino rangatiratanga, which gave Māori the right to exercise autonomy and kaitiakitanga, including the right to development.
Partnership - The Tribunal found that Māori groups must be accorded appropriate priority where there may be impacts on a taonga, or where the Crown must take vigorous action to protect a taonga.
Partnership requires the Crown to recognise that the Trust was still the chosen representative entity of kōhanga reo, which was the largest provider of te reo Māori immersion education.
The Tribunal described the relationship between the Crown and the Trust as “the most important relationship within the ECE sector to the Crown” (p 91 at [5.4.2]). As a result, the Crown must consult with the Trust and conduct research on kōhanga reo.
Kāwanatanga – The Tribunal found that kāwanatanga allows the Crown to determine ECE policy and ensure “standardisation across educational qualifications and accountability to the taxpayer” (p 91 at [3.2.4]). However, the Tribunal was careful to point out that Māori interests must not be stifled. Furthermore, there are few countervailing interests that could impact on providing on-going support for kōhanga reo when discharging the Crown’s obligations to the language.
The Tribunal also found that because kōhanga reo had the highest number of children learning the language, the kōhanga reo movement should be given high priority (p 92 at [3.2.4]).
Rangatiratanga and kaitiakitanga – Perhaps the most important aspect of the Report is the Tribunal’s eagerness to ensure an appropriate degree of tino rangatiratanga over the kōhanga reo movement. The Tribunal found that the principle of tino rangatiratanga afforded a “high degree of autonomy and control” of kōhanga reo over their kaupapa to revive te reo Māori and tikanga Māori.
The Tribunal found that the Crown should intervene in kōhanga reo only when necessary; for example, when the safety of tamariki was at risk.
Equity and options – The Tribunal also found that Māori must be provided with information about the advantages and disadvantages of ECE options, and that Māori who attended kōhanga reo are entitled to the same support as other ECE providers. The Crown must also fund research on kōhanga reo to inform itself of risks and benefits.
The Tribunal found that the Crown had not accorded kōhanga reo appropriate priority or provided sufficient support to kōhanga reo to discharge its Treaty obligations (p 127 at [4.6]).
Specifically, the Crown failed to demonstrate how the current policy framework promotes or supports kōhanga reo. Furthermore, the Crown had “done little to grow the number of services that would help preserve te reo Māori”, which contributed to the recent decline in enrolments. In the Tribunal’s words, the Crown had effectively “[left] the future survival of te reo Māori to chance” (p 142 at [5.2.3]).
Interestingly, the Tribunal did not go so far as to find that kōhanga reo or the Trust are taonga. Rather, kōhanga reo are “an essential vehicle for the transmission of the taonga itself (which is te reo), and for the exercise of rangatiratanga over it”. (p 94 at [3.2.5]) However, kōhanga do not have mātauranga Māori (Māori knowledge) related to it and whakapapa (genealogy) that can be recited about it, or kōrero tuku iho (traditions) associated with it, which are essential components of taonga. Importantly, however, kōhanga is so closely associated with the language that without appropriate support, the survival of the language would be jeopardised.
The Report also builds on the Tribunal’s findings from Ko Aotearoa Tēnei, where the Tribunal found that the survival of the language depends on future generations using the language. The Tribunal therefore found that the obligations on the Crown towards kōhanga reo are particularly strong (p 126 at [4.6]).
The fact that the Crown had not specifically promoted kōhanga reo or developed a plan to promote participation in kōhanga, put it in breach of Treaty obligations. Furthermore, it is not sufficient for the Crown to claim the matter is beyond its control. Rather, the Crown is bound to take “especially vigorous action” to remedy policy failures and support kōhanga reo.
The Tribunal also considered the nature of the relationship between the Crown and the Trust. It found that the Crown had acted in breach of its partnership obligations firstly by requiring the Trust to fit within the ECE policy framework; a framework which neither gives equal effect to Māori language or kōhanga reo kaupapa (p 190 at [6.4]). The Crown therefore did not uphold the Trust’s rangatiratanga and kaitiakitanga and failed to accord the aspirations of the Trust, and kōhanga reo generally, an appropriate degree of priority.
The Crown also breached the Trust’s rangatiratanga with respect to measuring and assessing the quality of kōhanga reo. Evidence was heard to the effect that kōhanga reo were performing well according to their own kaupapa (te reo Māori, tikanga Māori and socialisation) but did not rate highly when measured by ECE education standards.
While the Tribunal was careful to respect the Crown’s authority to determine childhood education policy for English-medium services generally, and services offering limited reo Māori content, the Tribunal found that the Crown must not treat kōhanga reo the same as other services. Rather, the Crown should work in partnership with the Trust to develop effective policy and measure and improve the quality of kōhanga reo.
The Tribunal also found that the Crown's funding regime breached its obligation to actively protect te reo Māori. The Tribunal found that the higher rate of pay for ECE teaching qualifications, as opposed to the kōhanga reo Tohu Whakapakari, devalued the kohanga reo movement and has "contributed towards incentivising parents towards mainstream ECE" (p 235 at [8.3.1]). Further, funding based on "teacher-led" institutions discriminated against the kohanga's "whānau/parent-led" environment. The Tribunal also suggested changes to the licensing and regulation regime for kōhanga reo to be more compliant with Treaty obligations.
The significance of the claim
The Report is an important pathway forward for the revitalisation of te reo Māori as an everyday language of Aotearoa New Zealand. It builds on the findings of the Waitangi Tribunal in Ko Aotearoa Tēnei (Wai 262, 2011), where the Tribunal found that the language was in a state of “renewed decline”. Importantly, it provides some clear duties on the Crown (and Māori) to take action in arguably the most important stages of language acquisition. Therefore, the Report is a useful addition to the literature on Māori language revitalisation and reinforces the Crown’s obligation to uphold Treaty principles.
The Report is also significant because it sends a signal to the Crown to ensure adequate priority is given to funding and resourcing Māori institutions (in this context, kōhanga reo) when taonga are in jeopardy.
Unlike other Tribunal reports, such as those dealing with te reo Māori (Wai 11) and Ko Aotearoa Tēnei (Wai 262, 2011), the Tribunal demonstrated a willingness to increase the control of Māori over the survival and future development of taonga.
In terms of the scope of the Crown’s duties, the Tribunal maintained the Crown’s right to determine ECE policy in New Zealand. However, the Tribunal also gives significant weight to rangatiratanga:
…the Crown must design early childhood education policy in terms of te reo Māori for Māori children and their whānau in a manner that does not undermine the rangatiratanga rights of Māori and their institutions (p 326 at [11.3.2]).
This statement has implications for the nature of the relationship between the Crown and other Māori institutions where taonga are at stake.