October 2015 Māori Law Review
Hui-a-Tau Conference 2015 - Te Hunga Roia Māori o Aotearoa
4 September 2015
Te Hunga Roia Māori o Aotearoa (the Māori Law Society) held its annual conference at Waitangi in September 2015. The conference provided an opportunity for lawyers, law students and members of the judiciary to discuss a wide range of legal issues relevant to Māori. The Māori Law Review is proud to support Te Hunga Roia Māori and to publish a selection of the presentations from the conference. The following paper is by barrister and solicitor Annette Sykes.
Te Miina o Papatūānuku* – Te Mana o te Wahine
(* The purifying and sustaining fluids of Papatūānuku)
I ahu te ara uwha o Tahu ki Papatūānuku ka puta ko Hineahuone ara ko tona tamahine a Hine Titama, te wahine atua o te po, na te tangi a Tirairaka i raru ai te ira tane, a Maui potiki tinihanga.
I ahu te mana o te wahine i te kunenga mai o te tangata, i te whakauru i te kukune i roto i te koopu o te wahine, ka tipu haere tona tinana, ko tona wairua ka rongo. Ka whānau mai te tamaiti ka tihei mauriora mai ki te whei ao, ki te ao marama, ka whakamana mai tona ira tangata ki te ao hou.
He wāhine he whenua ngaro ai te tāngata – Through women and land, men perish
Koinei te timatanga mai o te mana, te mauri, te wehi, te tihe o te haa, e kiia nei ‘i ruia mai ai i Rangiatea, he taonga i tuku iho’
In our own traditions I have drawn on the philosophical views of my peoples of Te Arawa and Tūhoe to convey why the topic that we have all been asked to reflect upon is so vital to me. He Mana Wāhine, He Mana Whenua underpins the kaupapa of my kōrero but it is intertwined with issues we face in the legal profession to highlight that these values can never be compartmentalised. They are pervasive in the way they enable my world view to be conveyed as a practitioner and as a daughter, mother, aunty and now grandmother who has found her way in Te Ao Māori.
I wish to turn to a second quote from an American black woman law lecturer who, like the influences of Angela Davis, Martin Luther King, and Malcolm X, has been a source of inspiration when I made a significant decision to move from degrees in economics and politics to pursue pathways in law.
When a white man teaches constitutional law, he teaches it from his particular insight …. His perspective might be different from that from a black woman who might be more likely to talk about basic constitutional issues like slavery and civil rights… Black women are more often confronted with and have unique perspectives on social areas of law that have been underemphasised…. These are not issues that white men, black men or white women teaching in law schools are necessarily attuned to. They are problems the black women cannot escape. (Dean Marilyn V. Yarbrough)
The entry of Māori women into the legal profession has empowered us to etch new paradigms in law and politics and to rebel against being made invisible as we are too oft to find ourselves in the colonising realities that most of us were born and raised into.
Fighting for identity, recognition of self; of the constitutional underpinnings of our past; of the need to protect women and children; of the need for gender equality and pay equity as workers and caregivers; marriage equality for lesbian women; advising on land occupations and arrest of our people in the ongoing struggle for our sovereignty to be given life; have been more than a calling for Māori women lawyers. It is a fight that can only be viewed as part of the struggle for recognition of our people as tangata whenua and the contingent constitutional protections that such status demands.
We all know that given the brutality of the subjugation and invasion of our peoples and their territories by force, and the blunt application of policies of assimilation and denial in the past, that the State apparatus and those that protect its functioning will never relinquish easily the power that such recognition demands. More and more it is becoming even a struggle for the rights of Māori to be accorded more than a cursory mention in the present constitutional debates around Republicanism and the like.
All this is occurring in a contemporary climate of forced Treaty settlements (with unilaterally designed and applied Crown policy and artificial time limits) and other indicia such as rising prison populations where Māori still outnumber everyone else in male incarceration rates by almost 2 to 1.
At the same time we are forced into the trivia of debates by Crown officials around unsolicited flag changes while the same Crown sends other faceless bureaucrats to participate in negotiations for complex multilateral free trade agreements (without Māori consent and knowledge) with other nations that will surely see the surrender of sovereignty, the power to make laws, and the power to enforce infringements of our tikanga against multinational corporations and their well-funded alternative dispute resolution forums.
Indeed in these forums I always remind myself of the oft quoted reminder from esteemed jurist Moana Jackson that what distinguishes us from the rest of our contemporaries is not that we are lawyers who just happen to be Māori but that we are in fact Māori who happen to be armed with law degrees and Māori experience that very rarely mirrors the realities of our contemporaries at law. And as Māori women lawyers we just see the world differently than men.
This is illustrated most simply for me by the fact that for many years I had always executed my wānanga learnt pepeha as an introductory statement of where I come from and who I am by tracing my lineage to my Pikiao tupuna; a reputed notorious lover of many women whom it is said that the Kingitanga we know today descend from also. When I discovered that I had an ancestress of equal notoriety, Makino, a reputed warrior woman with many lovers also located between the territories of Te Arawa and Maniapoto, between the mountains of Matauwhara and Kakepuku and who it is said thwarted a marauding war party with her bare hands, while the men were away fishing I might add, it made sense for me to align her relationship to me as a significant marker of identity equal in weight to the acknowledgements I also make to my Pikaio tupuna. It took many years of attending at wānanga to find out why our tupuna kuia had become silent in the memories of our contemporary whaikōrero experts. When probed on the matter I was eventually told by one of our elders that:
Well dear, Makino’s descendants had been labelled rebels; had fought against the Crown at Pukehinahina with their Mataatua kin and was one of the few Te Arawa iwi that had been rendered virtually landless by dint of the New Zealand Settlements Act 1863 which had confiscated the territories of those that had deemed to be in rebellion. We don’t really refer to her in contemporary settings because of course her peoples (your kin I know) effectively became refugees; followers of Te Kooti’s faith Ringatu and were not honoured by the Crown in the same way as those iwi of Te Arawa who for instance had participated in General Mair’s flying column and their incursions into Rangiriri and Te Urewera.
Unsurprisingly when this Māori woman’s legal lens was applied to this retelling of events around Makino it became even more obvious that it was my destiny that I was to become a rebel Māori woman lawyer, to reclaim her lands, to retell her story as a practical step in the resistance to colonisation, to have her proudly recalled by whaikōrero exponents rather than made invisible by a colonisers’ view of our history… And I hope when I reflect back on my career that I have not disappointed her.
The extent to which Māori women lawyers have been accorded equality with white men; white women or Māori men is today an issue being addressed by many of my sisters in this profession who share the stage with me today. Justice Goddard; Judge Fox; and Precious Clark are all acknowledged women leaders in Te Ao Māori and Te Ture o Te Pākehā who have been strident in their pursuit of excellence as academics and practitioners of the craft of legal analysis. They have rightly been recognised for their unique perspectives and abilities throughout the echelons of the legal system that we practice in.
I know it is not the “Māori thing” for the kumara to distinguish its own sweetness in the presence of others but on the rare occasions that we as Māori women gather together we should always take the time and space to honour those who have achieved in our struggle for equality. The struggle is relentless; ongoing and because it is rarely discussed (other than in the safe spaces that we create for ourselves) too often unrecognised when we have effected extraordinary achievements, as each of these women have.
I want to remind us all too that all of this has been achieved in the span of 30 years.
As an inaugural member of Te Hunga Roia Māori I can say that when we first gathered all that time ago in the whare kai in Tunohopu on the shores of Lake Rotorua, there were no Māori women judges and very few Māori women in positions of leadership on Government Boards or as Members of Parliament. The Honourable Georgina Te Heuheu who was present at that inaugural meeting was one of the first acknowledged Māori woman lawyers to be admitted to the bar and was practicing in one of the few all Māori firms of the day Hingston Chadwick. Carolyn Bull was also present at the hui. She was later appointed a Human Rights Commissioner after our hui. Carolyn regaled us all with her achievements working as a criminal and family advocate attached to Ngā Hau e Whā marae in Christchurch. The late Darlene Henare, who was one of the few Māori woman corporate lawyers working with Air New Zealand, reminded us of the need to make gains at the corporate decision making tables. Her sister, now Judge Denise Henare, was developing her newly created law firm in Tāmaki Makaurau. I believe even at that time Justice Goddard was working in the Crown Solicitor’s office and a young Māori woman lawyer, Sharon Opai, had joined Meredith Connell as one of the first Māori prosecutors.
There was a wave of women graduates that emerged from the universities that year into various parts of the profession. These included Ani Mikaere who joined the University of Auckland as a lecturer in law. Also Prue Kapua who is now the President of the Māori Women’s Welfare League. Initially, Prue was part of the team of legal advisers in the Race Relations Conciliator’s office and then to Prime Minister Geoffrey Palmer on the Resource Management Act and other matters. Judge Denise Clark had started as a barrister at the bar in Rotorua as had Judge Alayne Wills. Judge Fox at that time was working in Ngā Kaiwhakamārama i Ngā Ture, the first Māori legal service devoted to the development of Māori law with Moana Jackson. Moana Maniapoto had embarked full time as a musician. She released Kua Makona which had surfed the charts to remind us of the evils of alcohol in the wellbeing of whanau and our personal lives. She worked with the Kia Mārama Trust and a number of Māori Women Community Development advocates to create the Fightback Manual and a Civil Rights Sheet for those of our people faced with the reality of racial profiling, the threat of arrest and the likelihood of no representation. Legal aid was very much in its infancy and the Duty Solicitor schemes were just being trialled. I was the first women to appear as counsel in the Waitangi Tribunal and to undertake a number of murder trials under the tutelage of great advocates like the late Mike Bungay.
I believe our numbers as Māori women practitioners of the period may have numbered perhaps a dozen to service the whole country at the time. But we were trail blazers each and every one. We just had to be. There was no one else.
This of course was against the backdrop of the occupations at Takapuwahia Bastion Point and Raglan; the conflict around the Springbok Tour of 1981 and the Hikoi ki Waitangi 1984; the release of the advisory group’s report on welfare, Puao-te–ata-tu; and the constitutional summit at Tūrangawaewae soon after which demanded change for Māori in a number of contexts.
Resistance to the Crown’s deviousness was deemed absolutely necessary if we were to retain any semblance of relationship with our taonga and to uphold Treaty rights. Our people were exhausting legal avenues and some like Tuaiwa Rickard were busily taking their claims about an independent sovereign state of Whaingaroa to the Māori Land Court, regardless of Crown scare tactics that saw her and others almost constantly demonised in a State-controlled media of the period . Other women’s rights activists like the late Dame Mira Szaszy and Dame Nganeko Minhinnick were taking matters to the Working Group on Indigenous Peoples within the United Nations system to highlight the duplicity of a government that protects the rights of foreign investors whilst undermining the way of life and rights of Māori.
On top of this many of us, as young mothers, were looking carefully at our conceptual frameworks and the pedagogies being employed in the schooling system. We were part of the vanguard of those who established Kōhanga Reo and Kura Kaupapa. We were on our own pathways of discovery to reclaim our Reo Rangatira and the language relating to the Treaty of Waitangi.
We developed decolonisation processes on marae and in community halls and churches. We invited international speakers, like Father Filip Fanchette and Archbishop Desmond Tutu, to workshop with us on transformational options for the legal system. All of these people reminded us that we had to hold fast to our belief in Te Tiriti o Waitangi as the constitutional foundation stone of the modern state of Aotearoa New Zealand. These people were equally vigilant in their comments that we also needed to give force to the practice of Te Tiriti o Waitangi obligations in our lives, despite the inevitable resistance from governments that we were likely to face. When I was threatened with charges of sedition by the Bolger Government for comments I made at a conference during the Apec summit in Auckland in the 1990’s, Archbishop Tutu’s words were a welcome reminder of the resilience I would need to uphold the rights of tangata whenua. You simply cannot make change from the comfort of a legal system that protects for all intents and purposes the status quo.
Not a quick fix
As you can see the issues we have confronted are not about any quick fix solution. They are matters that have required years of commitment as part of the hard graft of turning back the tide of colonisation. In reflection I wonder how I managed to have children, maintain my career path, and my commitment to the protest movements, that had so shaped my thinking of the 1970’s, avoid arrest and incarceration and be touched by so many different women locally and internationally who seem to have the same kindred spirit. But I did so simply because, then as now, I recognised that our desire to maintain Aotearoa as ours is a struggle, a daily grind but a movement that is like the heart song of those manu that welcome each new dawn. The song of liberation that lifts our spirits to the heavens is that keen sense of understanding that this is our kainga, our homelands deserving of all of our protection and support.
Impact of struggle on Māori women lawyers and their career paths
What is clear from a quick literature review on the topic is that contemporary women legal scholars recognise that women legal academics and practicing lawyers have been unduly burdened attempting to gain recognition for Māori rights and protection for those rights under a law that still views a Māori Justice system as alien to this land. Their efforts to achieve judicial equality have not kept pace to those of Māori men. This is something that I find a little troubling as a former winner of the senior prize at law from Auckland University. It is an honour I know was shared by many of my contemporaries of the time like Judge Stephanie Milroy and the late Gina Rudland, one of the first presidents of Te Huinga Roia. When we embarked on our careers it was clear that we did so not from a position of inferiority when it comes to being recognised for our abilities to understand and interpret law in the Aotearoa New Zealand context. After all, in the highly competitive environment that law schools have become many Māori women graduated at the top of the game.
I must admit that I have been troubled by the way many of our Māori brothers who have achieved at the bar and climbed to judicial honours have not been the loudest of advocates to ensure equality of gender representation at the bench once they have arrived there either. But that is another kōrero. We at present don’t have a Māori woman High Court Judge sitting. There are not the same numbers of Māori Women partners as there are of Māori men in some of the large commercial firms or those firms dedicated to offering Māori service. Although I know that some of the greatest fee earners in these firms are highly skilled and talented Māori women practitioners. When I have questioned my colleagues at the bar on these issues I have been surprised by some of the responses. These responses inevitably say that women do not want the risk of commitment of partnerships. Or, when offered they have raised issues around the need to prioritise family and their tamariki. But that is a whole other story.
There are many examples in my own career at the bar that could highlight what the absence of Māori women role models has meant. Perhaps the simplest is that as a criminal lawyer with now almost 30 years of experience at the bar I have yet to conduct a criminal jury trial presided entirely over by a Māori woman judicial officer in either the District Court or the High Court. I can tell you it would be such a pleasure sometimes to just be able to present in the criminal court to a judicial officer who knows where Murupara is; who can pronounce Kaingaroa and Ngongotaha properly. And to present to someone who understands the myriad of factors that come into play when you address a jury around the dynamics of whanaungatanga that have come to bear in the all too many criminal offences that end up in the High Court. This is occurring simply by virtue of the exponential rise in poverty in communities and the accompanying escalation in the incidences of whānau violence where, as we all know too well, Māori feature disproportionately in the contemporary context. I am sure a Māori woman’s voice would also bring a dimension and impact of its own.
I can tell you that these little things do make a difference. I urge you to read a case, Barton-Prescott (Barton-Prescott v Director-General of Social Welfare  3 NZLR 179). It is not a case that is quoted often but it was an important turning point in our efforts to ensure the relevance of Te Tiriti o Waitangi guarantees to whānau. The context was placement of a Māori child within its whanau where there was no express reference to Te Tiriti o Waitangi in the Guardianship Act 1968 and other Acts dealing with the status, future and control of our tamariki. I mention this case only because Moana Jackson and I brought this case at the last hour for a grandmother seeking some kind of relationship with her grandchild upon placement by the Social Welfare Department with families beyond the immediate whakapapa ties of either the maternal and paternal parents who had placed the child up for adoption. We were fortunate to have a full High Court hear the case. A Māori speaking wise Pākehā male judge, Justice Gallen, and Justice Lowell Goddard. Moana and I reminded each other how the intuitiveness of the bench had made our arguments more easy to make in an environment that even today still places many of our children in placements by Child Youth and Family Services that cause alienation and disconnect our tamariki from their whānau.
When reflecting on why Māori women are important to the legal profession, I was overwhelmed by the memories of all of the testimony that I have crafted with our people; our knowledge keepers, in a number of forums. Many of these people have since passed on. I had the privilege of sharing their wisdom in our journey of reclamation of our rights. Their wisdom brought a distinctly feminist perspective.
I have chosen to conclude with a reflection on a piece of evidence where, in the context of the Foreshore and Seabed case before the Waitangi Tribunal, we were able to give force to the feminine divine. This is the dimension that exists in the realms of our Atua Wahine. It is a dimension rarely recorded by writers like Best and his contemporaries. It was a piece crafted by two Māori intellectuals steeped in Te Tai Ao, Sean Ellison and Angeline Greensill. Their perspectives brought a unique world view to the difficult question of relationships to the Takutai Moana and preserving our responsibilities in that regime. A number of eloquent addresses drawing on the mātauranga of te ao tūroa were given. The quality of this evidence was exemplary in highlighting the balance between the feminine and masculine divine.
Tangaroa still embraces Papatūānuku. Ranginui still embraces Papatūānuku. The foreshore is the space where one can clearly witness the movement and exchange of energies, and the preparation, bustling and adaptation made by the divine influences of the gods as they perpetually seek to express the inherent universal balance and harmony, one with another, within the ever-changing reality of the physical world. It is the open space, the courtyard on which the voices of all the divine influences of the gods are heard, seen, felt and sensed. As the tide comes in so Tangaroa stands to deliver his speech, and Hinewainui and Hinemoana move forward with cries of welcome and support, as they gently massage Papatūānuku. As the tide recedes it is Papatūānuku, and Tāne, and Hinewao, and Rakahore, and Hinetūākirikiri, and Hineone, and others who reach out to take hold of the life essence of the courtyard, and allow their individual and collective influences to be expressed and felt by all present. Each one of them has their own story, and each one of them has something to say. According to some, during the creation of the world, the gods began to fight, one with another, and Tangaroa and Tāne continue to quarrel. The physical manifestation of their dispute may be seen on the foreshore.
The foreshore is a sacred space, our place of prayer, our church. Ranginui in the heavens above is the roof, and Papatūānuku is the foundation and the floor. It is where we sense and feel the divine presence of all the gods and spiritual influences at all times. Although it is a place of leisure, and a storehouse of food, certain areas are held in particular reverence, and as such are set aside for certain purposes. When I step onto the beach I feel the presence of Tāwhirimātea in the gentle breezes and buffeting winds, of Hineuamairangi in the soft caress of light showers, of Te Ihorangi in the full, unadulterated, cleansing power of driving rain, of Hinepūkohurangi in the protective embrace of the mist, of Tamanuiterā in the warmth of the sun, of Hina te marama in the illumination of the moonlight, of Urutengangana in the conversations and energy plays of the stars, and of Hurumanu in the many voices of the seabirds. I remove my footware and the soles of my feet sense the presence of Papatūānuku, my sacred mother, of Tangaroa, of the seas and the oceans and the waters, of Hinewainui and Hinemoana, as I recall that all things have both masculine and feminine aspects and qualities, of Rakahore, whose children the rocks and boulders have accumulated countless stories over eons of time, of Hinetūākirikiri as the gravel and pebbles lightly massage the energy points of my feet, of Hineone whose sands collect the warmth of the sun, and of Tāne and Hinewao, in the trees and the bush and the forest. The soles of my feet affectionately stroke and massage the sand, the rocks, the pebbles and the grass, in the knowledge that all of creation has its own life essence, and that we are all related. We are related in the divine oneness of the universe, and we are related through our mutual descent from Ranginui of the heavens above, and Papatūānuku of the earth below. I sense the vibrations from our many relations throughout the universe, and I am energised and further enlightened. Here are some of our sacred spaces set aside for special purposes, our sacred rocks, our sacred trees, our places where we follow the example of our ancestors in giving thanks and offering prayers to the divine, and the resting places of our ancestors. These are the areas on which our ancestors walked, that felt the touch, the caress, the kicking, the stomping of their footsteps, and where they continue to roam in spirit.
Māori women’s space
In the same way that this piece of evidence asserts the need for us to treasure our sacred spaces I have to leave a last challenge to the organisers of this hui to create a safe and sacred space for us as Māori women to kōrero, to tangi, to waiata, to remember; to reclaim and to proclaim our mana wāhine. It is not publicised (but it has struck a chord with some who have been in Te Hunga Roia for a long time even if it has been ignored by others) that some of the more senior practitioners like myself have boycotted the last few gatherings of Te Hunga Roia because we feel that it has moved too far away from what we established. That was the need to create a Māori space for practitioners to talk, to share experiences and to develop strategies to remain in practice as Māori. I say this without any desire to criticise or insult the many Pākehā; Asian and Pasifika presenters at this hui who have come to support the kaupapa of the organisers of this hui. But I wish it heard and not silenced by our own.
Some might not know that one of the primary motivating focuses of the inaugural meeting was the need for us to provide support for Māori lawyers. Thirty years ago I believe there were approximately 6 or 7 Māori male practitioners facing censure from the New Zealand Law Society. Some were struck off as a consequence of inquiries into their. Some served terms of imprisonment for their failings against the professional standards of the general profession.
As a Māori woman lawyer I have observed three Māori women censured by the New Zealand Law Society in the past 12 months. One woman suffered from dementia and failed to seek appropriate support given the impact of that illness on her practice. Another young woman practitioner fled the country under the media scrutiny of convictions and charges. A third high profile case occurred where it was alleged a Māori woman criminal law practitioner had carried a cell phone into Mount Eden prison in breach of requirements under the Corrections Act. I wonder if there are any other of our practitioners feeling isolated; without guidance or support who also need the advocacy and advice of our society.
I conclude by reference to one of our whakataukī as a reminder that our success as a group can only ever be judged in Māori terms by measuring the success of the collective as a whole, especially the most vulnerable in need of compassion; understanding; and guidance in the struggles of our daily lives. This is one of the reasons, upon reflection after I wrote this speech, that I entered law after all.
Ehara taku toa, he takitahi, he toa takitini
My success should not be bestowed onto me alone, as it was not individual success but success of a collective