Hui-a-Tau Conference 2015 - Te Hunga Roia Māori o Aotearoa

Justice Joseph Williams

5 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 High Court judge the Hon. Justice Joseph Williams.

Can you see the island?

Kei aku rangatira o te ture e hui nei i te kohanga o te motu ki Waitangi, tēnā koutou, tēnā koutou, tēnā tātou katoa.

“E tū ki te kei o te waka kia pakia koe e ngā ngaru o te wā” (stand at the stern of the canoe and feel the spray of the future biting at your face), Api Mahuika’s famous saying is the theme for this hui-a-tau.  I thought that was a perfect image with which to start my comments to you, so I want to work with it for a while before I turn to my message.

Let me start, because we are in the North, with what is unquestionably the greatest journey of the Polynesians.  That journey south across two tropics from Hawaiki to Te-Ika-a-Maui.  The most dangerous journey any human had undertaken up until that point 1000 years ago.

Consider the science required to get Kupe and Kuramarotini, and Matiu and Makaro and the 25 other members of the crew of Matawhaorua to a spot not far north of where we are here at Waitangi.  It was extraordinary.  They did not know where they were going.  No-one had done it before.  But they knew there was something there.  How did they know?

Kupe knew that every year, just about a month or two from now, a little bird called the pīpīwharauroa flew from his home in tropical Polynesia to somewhere in the south.  And we know that here in Aotearoa because we’ve grown up at the receiving end of that journey.  We say at planting time, “I hea koe te tangihanga o te pīpīwharauroa” – “where the hell were you at planting time?”  You want to eat my kumara – where were you when the pīpīwharauroa was singing?  Where were you when that little bird’s journey that Kupe copied, ended up with its beautiful song here in Aotearoa.  That is nearly 3,000 miles south of where she started her journey.  She calls: “Kui kui kui, whiti whiti ora”.  One of the most beautiful of the bird songs of Aotearoa.  You hear it in these islands every year around October.  You should listen for it.

And what Kupe had figured out – was that the pīpīwharauroa had to be flying to land because it did not have webbed feet.  It was not a sea bird.  At least 4500 kilometres (or say 3000 miles approximately).  No stops.

And he also knew of course, as all of our teachings tell us, that one very important animal makes the same journey in the same direction, a little while later.

Pods of tohorā (whales) head down the same track.  They travel about 6-8 kilometres per hour.  Real slow with calves in tow.  Half the speed of his voyaging waka Matawhaorua.

Kupe figured that by following the tohorā he would find what island that bird was going to.

I am constructing this for a 21^st century audience.  But we know this is true because all the kōrero you hear in the North tells that story.  E rua ngā kaitiaki o Matawhaorua – Arai-te-uru rāua ko Niwa.  Anyone from the North knows that.  Matawhaorua had two kaitiaki: Arai-te-uru and Niwa.  And yet looking at it from a western trained 21^st century lawyer’s point of view, it is clear enough that those kaitiaki were tohorā – whales.  And in Kupe’s narrative mixed as always with ocean magic, he followed them south.

So the science they used, not just Kupe and Kuramarotini, but the 25 or so navigators that followed Kupe and the star chart or “road map” he memorised from that first journey, meant they and their passengers all made it here over the next couple of hundred years.

Remember that his wife Kuramarotini was the discoverer, not Kupe.  She was the one who said “He ao! He ao!  He Ao-tea-roa!  A cloud!  A cloud!  A long white cloud!”, when she saw the tell tale cumulus cloud formation rising above the horizon signifying the land form Kupe’s descendants came to call Aotearoa.

So starting this conference with that whakataukī – “E tū ki te kei o te waka kia pakia koe e ngā ngaru o te wā” – immediately makes me think of the radicalism of Kupe and Kuramarotini and all the great captains and navigators who followed them.  The radical steps they were prepared to take for the good of the whānau they carried with them on those voyaging canoes.  To leave behind the known and venture out into the unknown.

It is that story I want to pick up on before I take us to where I want to end up.

We know Kupe went back because the story says that.  Leaving half his crew behind in Aotearoa, Kupe went back to Hawaiki on Matawhaorua.  Then his grandson, Nukutawhiti, re-adzed Matawhaorua.  He renamed it Ngatokimatawhaorua; put more seats on it and brought more tropical Polynesians down.

But at some point over the next hundred years or so, the descendants of Kupe and Toroa (Mataatua) and Tamatea (Takitimu) and Tamatekapua (Te Arawa) and all the others lost that voyaging skill.  Or they decided they did not need it anymore because the kai here was too good.  Indeed the long distance ocean voyaging skill gradually fell into disuse all across Polynesia, from Hawaii to Rapanui, to Aotearoa.

Fast forward to the end of the 20^th century.  A Hawaiian who became a very famous man called Nainoa Thompson decided in the 1970s that he wanted to re-learn Kupe’s skill.  He formed the Polynesian Voyaging Society that many of you would know about.  I had the privilege of becoming friends with Nainoa and this is his story.  Bear with me.

That 20^th century Hawaiian found one of the last traditional navigators, one of the last navigators who still had Kupe’s skill, a man named Mau Pialug.  Mau agreed to come to Hawaii and teach Nainoa and a few other would-be navigators so that Hawaiians could make the first trip in a millennium maybe, from Oahu to the island of Tahitinui.  A journey of about 4400 km (2700 miles).  But it is a journey that is a lot easier than the trip from Hawaiki down to where we are, because they did not have to cross the strong westerly winds we know today as the Roaring Forties that divides Aotearoa from the tropics.  But a difficult journey nonetheless.

Anyway for two years they learned from Mau how to do what Kupe did, these modern Hawaiians.  To read the ocean and to navigate by the stars.  They were just about ready to go.  Nainoa was to be the navigator, the first navigator on a waka they had purpose-built for the trip called Hokule’a – which in Māori is Te Whetureka – the sweet star.

And one day, not long before they were due to leave, Mau took him, Nainoa told me, to the bottom of the island of Oahu.  He took him to the bottom of the island and he said Nainoa, now I want you to recite to me the star chart from Oahu to Tahitinui.  They had been learning this for two years so this was kind of Polynesian ocean voyaging 101; and Nainoa just ran it off – no sweat.

And then Mau said to him, “now do it again.”  And he did it, Nainoa said, half a dozen times.  And Nainoa started to have a bit of a crisis of confidence.  He thought “this guy doesn’t trust me, he doesn’t think I can do this.  I can do this standing on my head – what’s going on?”  He got quite worried about where his Sensei was going with this, telling him to repeat things that he knew inside out and back to front.

And after about the sixth time, Mau said to Nainoa, “Now can you see the island?”  And Nainoa said to me he was perplexed by that question.  Because of course you cannot. It is below the horizon.  He did not want to screw up.  So he said to Mau: “I don’t understand what you mean.”  And Mau walked away.

The next day they came back.  He did the star chart again – five or six times –– then, “now can you see the island?”

That second day Nainoa had still not worked out what this guy was talking about.  And he said: “I don’t understand.”  He was a young man, probably in his late 20s or early 30s, and he was getting annoyed.  He said: “I don’t understand” and Mau walked away.

They repeated this for three days, Nainoa told me.  And on the fourth day they came back and they went through the same ritual, this old fellow with Nainoa.  And then Mau said to him, “can you see the island?  Now can you see the island?”  And Nainoa closed his eyes, and tried to conjure up the island of Tahitinui in his mind.  He said: “Yes Mau I can see the island.  I can see it now.  Yes I get it, I get it.  I’ve got it.”

And he said Mau smiled and said to him: “You must keep that island in your mind, for you are the navigator.  There will be heavy seas and storms and dark starless nights on your journey.  You will be tested.  You will be safe if you keep that island in your mind.  But if you lose that island in your mind, you will die, and your crew will die with you.”

And Nainoa said that was the most important lesson he ever learned in his life.  Why?  Because it was a lesson, not just about navigating, it was a lesson about leadership.

Mau was really telling Nainoa that he must know with every fibre of his being, where he is going if he is to be a great navigator.  On such a difficult journey, if you are a true navigator – and I interpolate here, a true radical in the way that Kupe was – then unless you have the island firmly in your mind, the waves and the storms will distract you so much that you will lose your way.  The more radical the journey, the clearer the island image must be.

My challenge to you, Te Hunga Roia Māori o Aotearoa, is to have that island in your mind when you embark on your own leadership journey.

You see you have been around a while.  Since 1988.  I know.  I was there with Chad (John Chadwick) at the first hui-a-tau, at Tūnohopū Marae in Rotorua, there were about 30 of us from memory.

There was a great deal of debate about what we should set up, and what we should call ourselves.  And of course, just as you have done every year since 1988 that the group has met, you discussed the need for pastoral care and support of one another.  You have discussed technical education and scholarships and other things of direct relevance to us as lawyers.  In 1988, we too talked of these things.

The island, I suggest, in the minds of that small group gathered at Tūnohopū in 1988, was a re-imagined system in which two sources of law were recognised and normalised – Ture Pākehā and Tikanga Māori.  A system in which Māori tradition is valued and respected alongside that imported in 1840.  A nation not only bi-cultural but bi-legal; in short a Treaty partnership in the very bones of our constitutional arrangements.  That’s why they chose a radical name for themselves.  I mean it’s almost lost in the mists of time now.  They decided to call themselves the Māori Law Society – think about that.

In 1988 that was challenging because there was already a Law Society, and it wasn’t the Māori one.  They tried to imagine in their very name, that they might live the legal dimension of the Māori side of the Treaty partnership.  In fact, as John Chadwick has relayed in a later piece of writing that I’ve enjoyed reading several times, he got a call from an official from the Law Society saying: “I may have made a mistake but I heard on the radio that you have formed a Māori Law Society.”  This is a true story.  “Well I’m afraid you can’t do that because there’s already a New Zealand Law Society.  Of course you can join us if you wish but you must not steal our name.”

Well the Māori Law Society was not created in a vacuum.  It was born during the fight for te reo that we heard about in an earlier session.  During the period of the officialisation of te reo and the creation of the Māori Language Commission.

In 1988 that first generation tried to conjure up an island in their own minds – a bi-cultural, bi-legal Aotearoa in which tikanga Māori lived, side by side in harmony with Ture Pākehā.

Around the same time there were the big fisheries claims just underway and the system was really chewing its nails on how this was all going to pan out.  Māori had yet to work out that at some point they were going to fight over how much each tribe got.  In 1988, they were just fighting a common foe over the catch itself.

There were the great historical land claims being laid including the confiscation claims and the claims affecting land transferred to State-owned Enterprises.

There had been the policies that led to the short-lived Runanga Iwi Act 1990.  These were policies of devolution.  The idea from a radical Labour government, albeit a right-wing radical Labour government, was that the Māori Affairs portfolio would just be handed over, holus bolus, to the tribes for them to run, because Pākehā governments had screwed it up long enough.

My point is these were idealistic times.  Indeed they were radical times, in the true sense of that term.  Times of great change – a time of optimism.  A time with a focus on resurrecting the pride and wellbeing of a Māori nation.

This was our experience in 1988, when we decided that our waka would be called the Māori Law Society.

Now, 27 years on, a generation has tested that optimism and that radicalism to its logical conclusion.

Corporate iwi are now economic cornerstones of regional economies; owners of fisheries resource and land resources.

We have educational and cultural infrastructure such as kohanga, kura, wānanga, Māori television.

One of the most extraordinary things that I have seen on an annual basis for the last few years is that on 5 and 6 February each year the entire Cabinet comes here to Waitangi and gives an account of itself to the iwi leaders’ forum.  And it happens almost as a matter of course.

Since colonisation, such Executive accountability to Māori has never been this apparent.  The entire Cabinet, including the Prime Minister, turns up and talks to the chiefs.  Telling them how well they are doing for Māori, or not, as the case may be.  It is unprecedented.  And no-one seems even to notice what a radical change that is.  A kind of ad-hoc partnership table has been created in the 21^st century.

In 1988 there were four Māori MPs, now there are 20.

An anthem sung only in English in 1988 is now sung bilingually, no-one having ever decreed that that should be so.  It just happened, completely organically.

And of course Buck Shelford had just taught the All Blacks how to do the haka properly.

There were 30 people attending in 1988 at the first hui.  In 2015 there are 300 delegates.  Today the Chief Justice attends along with the Chief District Court Judge, the Deputy Chief Māori Land Court Judge and a smattering of judges from other jurisdictions including an international contingent of high profile judges from the Pacific.

Did Sir Ronald Davidson CJ turn up to our hui at Tūnohopū in 1988?  Hell no!

And we’ve seen fit to adapt a Māori translation of our name – Te Hunga Roia Māori o Aotearoa.

So with all this change in Te Ao Māori and to the mana of our own organisation, have we made it?  Is our job done?  Have we arrived at our island?  I must tell you, the answer to that question is: No.  No, no, no!

Let’s look at the sharp end of the law now.  Not the bling statistics about structural change that I’ve just talked about, but the numbers at the sharp end of the law.

5,000 CYPS cases in this country – children in care – and 3,000 of them are Māori.

Fifty-three per cent, my sister Tania tells me, of the compulsory treatment patients in the Waikato Mental Health system are Māori.

Forty per cent of all apprehensions are Māori.

8,600 prisoners in this country – a record muster – and 4,300 of them are Māori.

Here’s a number that Kim Workman told me about.  I’ve not had a chance to check with the Ministry of Justice (the source of it according to Kim), but it is a number that is very scary: 40 per cent of adult Māori men have done either prison or community-based sentences in this country.

About 200 people in every hundred thousand in the general population are in jail.  The number for Māori is nearly 700 in every 100,000.

The United States general imprisonment rate in total is 700 in every one hundred thousand, and the United States imprisonment rate is the highest in the western world, by a country mile.  The Māori imprisonment rate is basically the same as the US rate.

In the revitalisation of te reo we have struck some speed bumps lately.  Despite all of our optimism during the Te Reo Māori claim before the Waitangi Tribunal in 1985 – Annette Sykes’, Rawiri Rangitauira’s and mine, the numbers of Māori speakers is falling, not just in absolute terms but in percentage terms too.

Succession rates to Māori land are roughly estimated at about 50 per cent.  This means about 50 per cent of Māori land is owned by dead people.  Why?  Because their descendants were no longer effectively connected to these places.

We have numbers showing poor Māori health, poor Māori housing, poor Māori education, poor Māori employment, pervasive Māori criminality and victimisation.  In short, ladies and gentlemen of this successful organisation, we still confront grinding, unrelenting inter-generational problems.  I fear the State no longer believes that these problems can be solved, and is resigned simply to manage them instead.

As another generation passes, and it is a generation now since 1988, the ties of blood and circumstance continue to loosen.  Ties of iwi, hapū and whānau continue to loosen among a growing body of the Māori community.  It is to these people that the law speaks with a sharp tongue.

Can we see the island in the sentencing work we do?  And the use of s 27 Sentencing Act 2002 cultural reports?  Any island at all?  Why are iwi not routinely involved in the sentencing process?  4,600 Māori prisoners each have a cultural narrative which, if told, might have produced a different result.

What about in care and protection involving those 3,000 Māori kids who are no longer with their whānau.  Why are iwi not there?  Routinely involved in helping to ensure those whānau involved in the Family Court’s processes are connected to and supported by the kin matrix, as they progress through it.  In this of all forums, whānaungatanga ought to have a voice.

In family law I struggle to see that we are making headway with the judiciary, in the way we should, given the risk that I have identified of the slowly loosening ties connecting whānau, hapū and marae.

What about in contract law and the tikanga-based system of bargains?  What about the Māori approach to damages and restoration?  Or the role of iwi organisations in the development of public law?

There’s no area of modern law in which tikanga does not speak.  Yet we give it no voice.  Except, perhaps, in the law relating to the natural environment.  We are pretty good on that.

How do we help to make the system more amenable to tikanga Māori in the way we counsel and advise, in the way we advocate, in the way we judge, and in the way we write, in the language we use?

Te Hunga Roia Māori o Aotearoa has become an extraordinarily successful organisation.  As a networker, in pastoral care, in the provision of technical education to lawyers and law students for instance, the organisation has been unbelievably successful.  Well beyond what we had expected in 1988.

But where is our voice as a credible and independent disruptor of the status quo?  Can we still see the island we conjured up in our minds in 1988?

In the review of the former Children and Young Persons Service (CYPS), in the op-ed pages, in sentencing policy, in RMA reform, in Māori policy generally, in constitutional reform, and in law reform generally affecting Māori people – where is the credible Māori legal voice?  My learned friends, where is our voice?

I know that this path is difficult.  We all have jobs and it is hard enough just to build an organisation that takes care of us as we sweat our way through the sorts of problems we have to deal with on a daily basis.  Whether it is in the Family Court, in the criminal courts, in concluding Treaty settlements, in dealing with modern governance and so on.

But that, I challenge you, is not enough.  There is too much at stake.  We must not be the generation that, through silence, presided over the final collapse of Te Ao Māori.

Ae, e tū ki te kei o to waka kia pākia koe e ngā ngaru o te wā, engari e tere atu ana to waka ki hea?  Yes, by all means stand by the stern post of your waka, so that you may feel the spray of the future, but the real question is what is the waka’s proposed destination?  Where are you taking it?

To achieve the reality of a legal system that is a reflection of the Treaty partnership there are further steps you need to take as an organisation.  It is time for you to consider building a full-time secretariat and a full-time voice.  If not you, then who?

You are an organisation trained in the language of power because that is what law really is.  You have the code words and you must use them well if you are to be standing at the stern of this waka navigating us to the correct island.  Can you see it?

Nō reira, kei aku rangatira o te ture, kei aku hoa mātau, me mutu noa i konei aku kupu ruarua noa, otirā, tena tatou katoa, ka huri.

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