December 2014 Māori Law Review

Indigenous Peoples’ Good Governance, Human Rights and Self-Determination in the Second Decade of the New Millennium – A Māori Perspective

Indigenous Peoples’ Good Governance, Human Rights and Self-Determination in the Second Decade of the New Millennium – A Māori Perspective

The United Nations Permanent Forum on Indigenous Issues, Thirteenth Session on Good Governance and Human Rights, New York, 12-23 May 2014

Address by Dr Robert Joseph[1] of Te Mata Hautū Taketake – the Māori and Indigenous Governance Centre, University of Waikato, New Zealand

Overview

This brief paper addresses the nexus between good governance, human rights and Indigenous peoples’ self-determination particularly from Articles 3-6 and 46 of the 2007 UN Declaration on the Rights of Indigenous Peoples. The paper is placed within a Māori good governance context with some broader discussion of the Pacific.

Discussion

UNDRIP 2007

The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) opens with general statements regarding the rights of Indigenous peoples recognised in international human rights law and then focuses on self-determination which Anaya noted is:

… a universal human rights precept concerned broadly with peoples, including indigenous peoples, and grounded in the idea that all are equally entitled to control their own destinies.[2]

Indigenous peoples globally share in a common struggle for the recognition and realisation of their rights including this right to self-determination through self-government and the right to representation through their own governance institutions.  Articles 3-6 and 46 of UNDRIP refer to Indigenous peoples having the right to internal self-determination without threatening the territorial integrity of the nation-state and subject to individual and collective international human rights and good governance principles.

The right of self-determination however, is a highly contested evolving concept and will mean different things to different people depending on numerous factors but with power sharing as a salient point. A central issue is the recognition of the human right to self-determination through self-government, which ought to be, as a minimum, the power and authority of Indigenous peoples to govern themselves according to universal good governance principles.

Still, there is some debate about whether Indigenous self-determination is an endpoint or a means to an end. The endpoint argument tends to be based on the proposition that Indigeneity confers privileges akin to sovereignty in law which embraces a higher order principle that endorses the right of Indigenous peoples to be self-directing and self-managing, regardless of other considerations. The means-to-an-end argument on the other hand recognises Indigenous self-determination as a way of achieving desired outcomes. Whatever the opinion, my view is that self-determination is more about achieving results in law and in fact that are relevant and beneficial in modern times. Articles 3-6 and 46 of UNDRIP provide a basis for proclaiming self-determination as a right and also for justifying self-determination as a vehicle for ongoing Indigenous development into the 21st century.

In Aotearoa New Zealand, current Treaty of Waitangi settlements and the growing evidence that culture is an important determinant of economic and social advancement tends to favour the means-to-an-end interpretations of self-determination. Demographic changes and the consequences of Māori urbanisation have moreover, introduced new dimensions to the implementation and actualisation of self-determination. More on this later.

Governance

Governance and good governance are terms which, from about the intellectual debates of the 1980s and 1990s, have progressed from obscurity to widespread usage with the terms becoming widespread in development circles and prominent in the international and local public policy lexicon. Not surprisingly, there are differences of view as to what governance and good governance mean. The need for governance however, exists any time a group of people come together to accomplish an objective. Hence, every form of social organisation may be said to exhibit attributes of governance from family trusts to national and even global groupings such as the United Nations.

Indeed, governance is as old as humanity and is reflective of multiple societies and cultures across the world. Its ontological roots can be traced to the original Latin terms, ‘gubernare’ or ‘gubernator’: each an apt allusion for some Indigenous people to the navigation of a ship or captain.[3] The World Bank noted that governance methods include ‘structures, processes, norms, traditions and institutions and their application by group members and other interested parties.’[4] Governance has also been defined as the process through which institutions, businesses and citizens articulate their interests, exercise their rights and obligations and mediate their differences.[5] Fundamentally, governance is about power, relationships and accountability – who has influence, who decides, and how decision-makers are held accountable which applies to nation-state Governments and Indigenous peoples’ institutions.

Good Governance

For Indigenous peoples and nation-states, good governance must be achieved at the international, national, regional and local levels for actualising self-determination. Kaufmann, Kraay, and Mastruzzi assert that ‘good governance requires enabling conditions: the existence of standards, information on performance, incentives for good performance, and accountability.’[6] Specific universal good governance elements or principles rightly espoused by Dr Dalee Dorough include transparency; responsiveness; consensus; equity and inclusiveness; effectiveness and efficiency; accountability; participation; consultation and consent; human rights; and the rule of law.[7]

Dr Dorough added that ‘whether considered as part of the rule of law or in their own right, respect and protection for human rights are key principles essential for good governance and must be consistent with the UNDRIP which affirms the distinct status and human rights of Indigenous peoples.’[8] The international community has reaffirmed that ‘human rights, the rule of law and democracy are interlinked and are mutually reinforcing and they belong to the universal and indivisible core values and principles of the United Nations.’[9]

Universal good governance principles apply to governments as well as to corporate and other institutions including Indigenous peoples’ governments and governance institutions.  Universally recognized principles for good governance must be applied and realized by Indigenous peoples and nation-states although such principles may be applied in different ways depending on specific circumstances. The literature internationally concludes that there is no single world-wide ‘one size fits all’ model for best practice good governance due to differences in legal systems, institutional frameworks and cultural traditions.[10]

Some good governance principles may conflict with each other in practice as well. For example, the emphasis given to different aspects of governance will vary in different settings because societies value process, form and outcomes differently. In more utilitarian Western cultures, great value is placed on efficiency. In some Indigenous and tribal societies, a desire for consensus may override efficiency. Some cultures give primacy to individual rights while others stress communal obligations. Some societies may see economic growth as their primary goal while others accord more importance to environmental sustainability, social justice and cultural diversity.

Good governance in France, Brazil, Mexico and Russia is not the same as it is in England, China, Senegal and the United States of America. Good governance in Tonga, Norway, Cambodia and the Cook Islands is not the same as it is in Aotearoa New Zealand, India, Uganda and Australia. These different values, laws, institutional frameworks and cultural traditions explain why good governance varies in different countries and even between communities within a country. Still, it is important that Indigenous traditions and values be recognised and accommodated but in a way that contributes to good governance rather than undermines it. For constructive discourse to take place, it is important that different governance traditions, institutions and values are acknowledged and understood but are applied in a good governance manner. It behoves nation-states and Indigenous peoples then to acknowledge, understand, adopt and perhaps even celebrate these good governance principles along with ‘other’ cultural governance traditions and to apply them within their formal governance institutions. For Indigenous peoples, good governance principles are equally important in their relationship with their respective nation-state, but also within Indigenous communities themselves. But good governance principles and human rights must be applied!

A crucial example of the need for equal application of the rule of law and for the protection of human rights is the right of Indigenous peoples to self-determination. This core right of all peoples is regarded as a pre-requisite to the exercise and enjoyment of all other human rights.[11] Nation-states must therefore equally respect and recognise the right to self-determination of Indigenous peoples in order to protect and promote all of their individual and collective human rights fundamentally in their relationship with Indigenous peoples and with the good governance of Indigenous communities.

Māori Governance

Māori in Aotearoa New Zealand provide an interesting international case study for actualising Indigenous self-determination, human rights and good governance. Māori are an influential group within 21st century Aotearoa New Zealand society. Te Reo Māori is an official language along with English and sign language. The Treaty of Waitangi and its implications for Māori and the nation have been acknowledged and negotiated since 1975. Māori political influence is approximately 20% in Parliament and the Māori Party is a coalition partner with the current National Government. Māori are involved in the highest levels of most national sports, business and public office. Māori television, news and radio are broadcast daily to the nation. Māori place names are well known throughout much of the country. Māori make up approximately 15% of the New Zealand population.[12] The growing prominence of the Māori community nurtures understanding of cultural similarities and differences.

Interest in the good governance of Māori communities[13] has commensurately grown considerably over the past three decades as significant Treaty of Waitangi settlements have been made between the Crown and various tribes under the Treaty of Waitangi and as Māori collectives take an increasing role in providing social service delivery on behalf of the Government to Māori communities.[14] Since the 1980s, there has been an explosion of new Māori governance entities formed at the community, regional and national levels. Today there are literally thousands of separately incorporated Māori organisations throughout Aotearoa New Zealand.

The visibility and importance of Māori self-determination and good governance in law and fact in Aotearoa New Zealand are highlighted by a number of important factors. These include progress towards more Treaty of Waitangi settlements that are governed by post-settlement governance entities (PSGEs),[15] requirements for greater engagement between Māori and local government under the Local Government Act 2002, proposals for mandated Iwi (tribal) organisations under the Māori Fisheries Act 2004,[16] proposed allocations of marine farming space to Iwi under the Māori Commercial Aquaculture Claims Settlement Act 2004,[17] the prospect for Māori group involvement in marine and coastal area administration under the Marine and Coastal Area (Takutai Moana) Act 2011,[18] the thousands of not-for-profit Māori organisations who provide social services,[19] and the current trend to enter into joint management agreements (JMAs)[20] and co-management agreements over natural resources with local Māori under the Resource Management Act 1991 (RMA) and specific legislation such as the Waikato-Tainui Raupatu Claims (Waikato River) Settlement Act 2010.

Growing Māori Economy

What has augmented the visibility of the Māori community is the growing Māori economy which has emerged as a result of Māori corporate successes through transactional governance. The independent 2011 BERL report noted that the Māori economy contributes approximately $36.9 billion to the national economy or approximately 7% of GDP.[21] The majority of Māori investment however, is in the primary sector – farming, forestry and fishing, which is volatile and beyond the control of Māori businesses just like these areas are for the wider New Zealand economy. External climate, commodity and currency shifts can either raise or fell the Māori economy. But increasingly, the Māori asset base is diversifying and expanding to include secondary and tertiary sectors such as energy generation, manufacturing, business services, health and education. Although these statistics are modest, the Māori economy is growing and Māori corporate entities are becoming more significant players within New Zealand society.

Reconciling Traditional, Transactional and Transformational Governance

Notwithstanding the good governance and corporate successes of the Māori community in places, Māori continue to struggle with actualising internal self-determination and good governance in fact. This is particularly regarding at least 3 key areas as I see it:

  • Traditional Māori governance – what role does traditional tikanga Māori (customary law) play in contemporary Māori governance?;
  • Transactional Māori governance – are the legal entities accomplishing appropriate and successful economic development?; and
  • Transformational Māori governance – Does the good governance of a legal corporate entity that represents a Māori community of interest make a positive difference in the actual lives and well-being of that Māori community?

Māori appear to be excelling in transactional governance – making money, but are struggling with reconciling traditional governance and the place of culture in the boardroom particularly given the different agendas for social, cultural and commercial development and the different philosophies that underpin tribal traditions and best commercial practice.[22] Self-determination however, is the ultimate expression of cultural survival and without somehow incorporating traditional governance in the 21st century, assimilation is inevitable.

Moreover, transformational governance – making a positive difference in the lives and wellbeing of the Māori community the governance entity represents – for many Māori remains elusive. Māori still feature high in the negative statistics of the nation. Fifty percent of the prison population in New Zealand identify as Māori. Māori have a higher unemployment rate than non-Māori. Māori at educational, occupational and income levels have poorer health than non-Māori. One in every two Māori are likely to develop a mental disorder. Māori suicide rates are higher than non-Māori and Māori have a considerably lower life expectancy than non-Māori.[23] Hence, the corporate successes need to be measured against an appropriate reconciling of traditional and transformational governance for self-determination to have any practical effect. A new approach to Māori governance then is required given that excellent Māori governance and leadership that incorporates at least traditional, transactional and transformation governance are pivotal to actualising Māori self-determination and wellbeing as a people in law and fact.

Good Indigenous Governance Adapts

It is important to also emphasise here that traditional Māori governance laws and institutions, referred to as tikanga Māori, are not static and unchanging and need to be updated to reflect experience of the 21st century.  All cultures adapt and evolve in time and with new technology. Tikanga Māori is capable of being updated for contemporary times. While the traditional Māori good governance principles and values are deeply embedded and enduring, they are always interpreted, differentially weighted and applied in practice in relation to particular contexts, giving ample scope for choice, flexibility and innovation. If anything can be identified as originating in and handed down from the pre-European Māori ancestors unchanged, it is not any particular social form, such as iwi (tribes) and hapū (sub-tribes), or particular practices, such as kaitiakitanga (stewardship) but the principle of creative adaptation itself. Indeed, the 2006 Waka Umanga Report noted that:

The culture of the people is not limited to historic conceptions. A credible [governance] structure is one that conforms to the peoples’ current understanding of themselves as a tribe or general Māori community, of where they have been as a people, of who they are now and where they seek to be.[24]

A dynamic society will evolve as it encounters other societies and other knowledge systems and there will also be ongoing maintenance of the customary traditional values and their relevance. Da Cunha’s observations are germane in this respect:

Culture is production and not a product, we must be attentive in order to not be deceived; what we must guarantee for the future generations is not the preservation of cultural products, but the preservation of the capacity for cultural production. [25]

Professor Mason Durie added:

Governance at local or national levels requires a level of organisation which incorporates both customary Māori practices and the application of democratic principles. The two are not incompatible, nor should their juxtaposition be discounted. Māori can be strengthened by the past and can learn from it. But the challenges of tomorrow will require a canopy of skills and wisdoms many of which will come from other cultures and nations.[26]

However, what is critical throughout with cultural adaptation, good governance, human rights, the rule of law and updating traditional governance practices for Māori and other Indigenous people is that Māori and other Indigenous people should be controlling the process of cultural change and governance adaptation rather than being controlled by government policy, legislation and other external factors. As in the past, Māori and other Indigenous People have survived dramatic changes of colonisation, urbanisation and now globalisation, individually and collectively, by deploying their capacity for adaptation; on the one hand modifying traditional forms to serve new functions and on the other creatively adapting introduced forms to their own ends, transforming both in the process. The ability to adjust while maintaining the group’s cultural uniqueness, values and customary norms is crucial for appropriately acknowledging and reconciling traditional Māori and Indigenous peoples’ governance both with transactional and transformational governance and for actualising Indigenous self-determination in the 21st century.

Moreover, key current internal challenges for Māori self-determination through good governance that require 21st century updating aligning with human rights and the rule of law as I see them include, among other things, the role of women, Elders, youth, children, urban Māori and non-leadership tribal and community members as well as appropriate dispute resolution fora.

Pacific Governance

In contrast to Māori, in the mainland United States of America, Indigenous peoples on reservations have stronger opportunities for actualising self-determination and good governance in law and fact through their residual sovereignty and domestic dependant nation status. Māori governance appears to be more akin to Indigenous corporate governance in Alaska via the Alaska Native Claims Settlement Act 1971 which corporatised the Alaska tribes.

The Indigenous peoples of Canada have a lesser degree of self-determination in law and fact than the USA but still much more than Māori through the Federal comprehensive claims and self-government agreements such as the James Bay Cree and Inuit Northern Quebec Agreement 1975, the Inuvialuit Settlement 1984, the Nunavut Settlement 1993, the Nisga’a Settlement 1999 and the Tswawassen Settlement 2009. Band government under the Indian Act in Canada is another form of self-determination in law but it appears to be more limited and has some parallels to Māori governance under the paternalistic Māori Land Court regime in New Zealand.

Self-determination of the Aboriginal and Torres Strait Islanders in Australia appears to be in some ways similar to Māori in terms of the political influence of some Aboriginal land Councils and Indigenous Land Use Agreements (ILUAs) resulting from the 1992 Mabo decision[27] and the subsequent Native Title Act 1993 (Cth). ILUAs allow for traditional owners to assert aboriginal property rights over traditional territory and to enter into agreements with development companies although such rights are neither full self-determination in law nor in fact. The Marine and Coastal Area (Takutai Moana) Act 2011 certainly allows for ILUA type agreements for Māori groups but the waters are yet to be fully tested in this area.

In French Polynesia, although former French colonies, there is a renaissance of Tahitian and East Polynesian culture, language and identity which is allowing for a degree of internal self-determination in fact. In contrast, the nation-state of Fiji has full self-determination in law but the Indigenous Fijian and Rotuma peoples may have full self-determination in fact but appear to be struggling with transformational governance. Papua New Guinea is a sovereign nation-state in law but the Indigenous peoples are so diverse and complex that not all of them effectively practice self-determination in fact in terms of transactional and transformational governance. In contrast, in Tonga, Samoa, Tuvalu, Kiribati and other Island states, the Indigenous peoples have self-determination in law and fact but many often struggle with economic and social development although the culture and political influence are strong in places.

In contrast again, in Asia, the Ainu in Japan; the H’mong, Lahu, Yao and others in Thailand; the Orang Asli in Malaysia, the Puyuma, Ami, Yami, Rukai and other peoples in Taiwan; and the Igorot, Bukidnon, Ifugaos, Kalinga, Nigritos and other Indigenous peoples in the Philippines are struggling for the recognition and actualisation of self-determination in both law and fact.

But whatever the degree of self-determination throughout the Pacific and elsewhere, the implementation of universal good governance principles in an Indigenous peoples’ culturally specific context is critical to actualising individual and collective self-determination in fact.

In Aotearoa New Zealand, Māori may not have actual self-determination, self-government and autonomy in law, but they do have considerable political, economic and cultural influence in fact. There are guaranteed political seats in Parliament and some local government councils. Māori occupy key social service delivery roles. There is a central education system outside the mainstream from pre-school to tertiary levels. The Māori language has been revived as a living language and is a recognised official, economic and growing civic language. Māori culture is visible strongly in the public and private sectors of the country. There is a growing Māori economy. Māori do not have an ability to control the local legal framework in Aotearoa New Zealand like Indigenous peoples can in North America, but they do have strong political, educational, social, cultural and economic influence or a degree of self-determination in fact.

Self-determination through good governance, respect for human rights and the rule of law, then, are means to an end for Māori as a way for achieving desired outcomes and results that are relevant and beneficial to Māori in the 21st century. Māori still have their challenges and struggles but at least some of these are known. The question is what to do about them which is another aspect of self-determination and good governance – appropriate dispute resolution.

Summary

The right of all peoples to self-determination is fundamental to international law. It is often invoked by Indigenous peoples in the Pacific and elsewhere in their calls for greater recognition by nation-states to govern themselves. Whether considered as part of the rule of law or in their own right, respect and protection for human rights are key principles essential for good governance and must be consistent with the UNDRIP which affirms the distinct status and human rights of Indigenous peoples. Articles 3-6 and 46 of UNDRIP provide a basis for proclaiming self-determination as a right and also for justifying self-determination as a vehicle for ongoing Indigenous development into the 21st century without disrupting the territorial integrity of the nation-state and through the appropriate application of universal good governance and human rights principles.

The actualisation of Indigenous self-determination in law and fact throughout the Pacific however, varies considerably from country to country. Not surprisingly, the application of good governance and human rights principles for self-determination also varies considerably from country to country. But whatever the degree of self-determination throughout the Pacific and elsewhere, universal good governance and human rights principles in an Indigenous peoples’ culturally specific context must still be applied!

Māori are seeking greater legal and political recognition in Aotearoa New Zealand to govern themselves and to have the opportunity in law and fact to implement good governance principles within their communities through legal corporate and political governance entities. Other Indigenous peoples appear to share similar aspirations. But Māori (and other Indigenous peoples I suspect) are struggling with actualising internal self-determination and good governance particularly regarding, the legal recognition of their right in law to self-determination, as well as the implementation of this right in fact. This is especially so regarding the reconciliation of traditional, transactional and transformational governance. Moreover, Māori and other Indigenous peoples’ governance and self-determination both can and needs to adapt to 21st century demands including by applying good governance principles, human rights and the rule of law with, among other things, the role of women, Elders, youth, children, urban Māori and other urban Indigenous peoples, non-leadership members and by adopting appropriate dispute resolution fora and processes.

If contemporary Māori and other Indigenous peoples’ governance entities can adapt for example by reconciling traditional, transactional and transformational governance simultaneously and positively in a 21st century context then although they may not have actual self-determination in law, they have it in fact which is a degree of self-determination that is about making a significant difference in the lives and well-being of the people. Such adaptation can be accomplished, all things being equal, through such things as the appropriate application of good governance principles, human rights and the rule of law. As highlighted earlier however, transformational governance is not occurring among enough Māori (and I suspect other Indigenous peoples) as reflected in the current negative social statistics of the nation. This leads to my final point. Increasingly, the success of self-determination for Māori and other Indigenous peoples in law and fact in the second decade of the new millennium will be measured by the way it impacts on the lives, resources and aspirations of Indigenous individuals, Indigenous kin groups, Indigenous political collectives and importantly, future generations. Indeed, Indigenous peoples’ self-determination through the application of good governance and human rights principles is both a right and a responsibility.

Tēnā koutou katoa.

Notes

[1] Tainui, Tuwharetoa, Kahungunu, Ngāi Tahu, Senior Law Lecturer, Te Piringa-Faculty of Law, and director of Te Mata Hautū Taketake – the Māori and Indigenous Governance Centre at the University of Waikato in Aotearoa New Zealand  rjoseph@waikato.ac.nz. These notes are more extensive than the actual presentation by Dr Joseph at the Permanent Forum on Indigenous Issues 13th Session in New York in May 2014.

[2] Anaya, J, Indigenous Peoples in International Law (2nd Ed, Oxford University Press, Oxford, 2004) at 98.

[3] John Farrar, Corporate Governance: Theories, Principles and Practice, (Melbourne, Oxford University Press, 3rd Edition, 2008) at 3.

[4] World Bank, Governance and Development (1992) 1.

[5] L Frechette, Deputy Secretary-General of the UN, Speech to the World Conference on Governance (31 May 1999).

[6] Kaufmann, Kraay, and Mastruzzi in Maureen Lewis & Gunilla Peterson, Governance in Education: Raising Performance, (World Bank, 2009) at 3-4.

[7] Dr Dalee Dorough, ‘Concept Paper on the 2014 Theme Regarding Good Governance’ (UN Permanent Forum on Indigenous Issues, 13th Session, New York, 12-23 May 2014).

[8] Idem.

[9] Idem. See also Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels, GA Res. 67/1, 24 September 2012 (adopted without vote), para. 6: "We reaffirm the solemn commitment of our States to fulfil their obligations to promote universal respect for, and the observance and protection of, all human rights and fundamental freedoms for all. The universal nature of these rights and freedoms is beyond question. We emphasize the responsibilities of all States, in conformity with the Charter of the United Nations, to respect human rights and fundamental freedoms for all, without distinction of any kind."

[10] Jacques Bourgault for example, suggests the basic aspects of good governance comprise: (1) perception of the legitimacy of power of the public authority; (2) citizens at the centre of decision-makers’ concerns; (3) a ‘society-centred programme’ based on listening to citizens; and (4) rapid adaptability of public administration to citizens’ needs in dispensing public funds. See  J Corkery (ed), Governance: Concepts and Applications (IIAS Working Group, International Institute for Administrative Studies, Brussels, 1999) 173.

[11] Human Rights Council, Report of the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, UN Doc. A/HRC/12/34 (15 July 2009), para. 41: "The right of self-determination is a foundational right, without which indigenous peoples’ human rights, both collective and individual, cannot be fully enjoyed." See also Human Rights Committee, General Comment No. 12, Article 1, 21st sess., A/39/40 (1984), para. 1: "The right of self-determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights."

[12] In Aotearoa New Zealand in 2013, around 1 in 7 New Zealanders were Māori. There were 598,605 people of Māori ethnicity and 668,724 people of Māori descent living in New Zealand in 2013. http://www.stats.govt.nz/Census/2013-census/profile-and-summary-reports/quickstats-about-Māori-english/population.aspx. (Accessed December 2013).

[13] See Joseph, R, “Contemporary Māori governance: New era or new error?”, New Zealand Universities Law Review, (Vol. 22, 2007) at 682 – 709 and Joseph, R., ‘Contemporary Māori Governance: New Error’ in Farrar, J and Watson, S, (eds) Contemporary Issues in Corporate Governance (The Centre for Commercial & Corporate Law Inc, University of Canterbury, Christchurch, 2011) at 327 – 368.

[14] In 2009, there were at least 70 or more iwi (tribal) organisations that were mandated to manage the proceeds of the nearly $1 billion from the fisheries settlement; 30 or more iwi and hapū organisations were mandated to manage the $1 billion proceeds of comprehensive Treaty of Waitangi settlements; 8,500 representative management  entities – Māori Incorporations and Ahu Whenua Trusts - under the Te Ture Whenua Māori Act 1993; 44 or more Māori health providers, and at least 500 Marae (Māori meeting complex areas).

[15] Over 35 post-settlement governance entities have been established to date to manage settlement assets and govern Māori settlement communities. In 2014, 67 Deeds of Settlement have been signed by Māori and the New Zealand Crown and it is anticipated approximately 60 more will be signed.

[16] Māori Fisheries Act 2004, ss 13, 14, 21, 27, 28, 40 and 130.

[17] Māori Commercial Aquaculture Claims Settlement Act 2004, ss 32, 33 and 45.

[18] There are currently over 13 Takutai Moana applications being processed throughout the country but the Government is still developing its policy on this area.

[19] Such as Māori Health Authorities (MHAs) and private and charitable trusts. In 2009 there were approximately 44 MHAs.

[20] Resource Management Act 1991, ss. 33, 34, 35.

[21] Nana, G, Stokes, F & Molano, W, The Asset Base, Income Expenditure and GDP of the 2010 Māori Economy (BERL Report, Te Puni Kokiri, Wellington, 2011).

[22] The challenges of incorporating traditional Māori governance in the boardroom occurred early for Waikato-Tainui which resulted in debilitating litigation. See Porima v Te Kauhanganui o Waikato Inc Soc [2001] 1 NZLR 472; Mahuta v Porima (Unreported Judgment, 9/11/00, Hammond J, HC Hamilton M290/00); Porima v Waikato Raupatu Trustee Company Ltd (Unreported Judgment, 20/2/01, Robertson J, HC Hamilton M330/00); and Mahuta v Porima (Unreported Judgment, 22/9/00, Hammond J, HC Hamilton M238/00).

[23] Refer to the Ministry of Social Development for updated statistics. http://www.msd.govt.nz/.

[24] New Zealand Law Commission, Waka Umanga: A Proposed Law for Māori Governance Entities (New Zealand Law Commission, Wellington, 2006) at 69.

[25] Da Cunha, M C, “The Case of Brazilian Indians” in S Stephens (ed), Children and the Politics of Culture (Princeton University Press, 1995) at 282-291.

[26] M Durie, Te Mana Te Kawanatanga: The Politics of Māori Self-Determination (Oxford University Press, Auckland, 1998) at 238.

[27] Mabo and Another v The State of Queensland and Another [1989] HCA 69; (1989) 166 CLR 186; and Mabo and Others v Queensland (No. 2) [1992] HCA 23; (1992) 175 CLR 1.

Author: Robert Joseph

Dr Joseph (Tainui, Tuwharetoa, Kahungunu, Ngāi Tahu) is a Senior Law Lecturer, Te Piringa-Faculty of Law, and director of Te Mata Hautū Taketake – the Māori and Indigenous Governance Centre at the University of Waikato in Aotearoa New Zealand