Speech: The Place of indigenous rights and customs in the law

SPEECH
Rahui Katene, Maori Party MP for Te Tai Tonga
Monday 16 May 2011 ; 7pm
'Te Wiki te Ture Maori: Ka Pu te Ruha?
The Place of indigenous rights and customs in the law
Otago University, Dunedin


I was intrigued by the theme you have invited me to address – ka pu te ruha: the place of indigenous rights and customs in the law.

This theme comes from the well-known whakatauaki: ka pu te ruha, ka hao te rangatahi.

A traditional interpretation might be that as an old net withers, another is remade – but it’s never sat easily with me that for a new net to be in use, the older one should be discarded.

Whether it be in law, medicine, education or health I have always thought that multiple voices and diverse perspectives should be valued, rather than relying only on one source of authority.

Another meaning that I prefer of that same proverb is ‘when wisdom emerges, transformation occurs’.

So how do we ensure the wisdom of indigenous rights and customs in the law is applied in a way in which transformation can and will occur?

There has never been a better time to consider such a challenge.

Three years ago, when I addressed Otago University as a candidate for the 2008 General Elections, we were still reeling from the Labour Government’s decision in September 2007 to vote against the United Nations Declaration on the Rights of Indigenous People – separating ourselves out from the 143 nation states who voted in favour – but significantly, ignoring and actively rejecting the best advice from Maori legal experts, academics and activists who had spent the best part of two decades preparing for the General Assembly vote.

It was a devastating moment in our political history that Labour could so easily sign away indigenous rights.

Just over a year ago the Maori Party changed all that – with the historic decision in April 2010 for New Zealand to sign up to the Declaration which now represents the minimum international standard on indigenous rights.

In doing so, we addressed a creeping perception emerging that New Zealand had retrenched from what was previously known as a country with progressive indigenous agendas.

Of course an indigenous rights regime is only of value if there is the political will to implement – and that’s where the Maori Party has a vital role to play.

The implementation of indigenous rights and customs in the laws has up until now, been mainly influenced by the determined actions of whanau, hapu and iwi in putting a case forward - and the proactive response of the Maori Land Court and the Waitangi Tribunal.

But now, for the first time ever, there is a dedicated Maori voice coming to the decision-makers table; able to create the space for iwi to dialogue; placing indigenous rights firmly on the agenda.

And I want to give an example of how this operates in practice in two recent high profile developments.

One of the articles that prompted the Labour government to oppose the indigenous rights declaration was Article 19 which said:

States shall consult and co-operate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their own free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.

During the lead up to the Marine and Coastal Area (Takutai Moana) Bill the Government actively engaged with the Iwi Leaders Group, who also held their own separate consultations with their own whanau and hapu; and brought their own legal advisors to the table.

And just last week, in announcing the forward work programme on water reform, we were also pleased that Government agreed that there will be ongoing engagement between Ministers and the Iwi Leaders Group on the rights and interests of iwi in fresh water.

Of course what is probably not known, is that outside of the more controversial policy areas, the Maori Party has also negotiated that representatives of iwi are empowered to influence policy across a wide range of areas, such as :

· Representing Maori perspectives at the UN Climate Change conference in Copenhagen;

· A Maori reference group has been established to advance Crown/iwi partnerships for afforestation programmes;

· The Agricultural advisory group on ETS, amongst its eight members it includes Roger Pikia from Te Arawa and Edward Ellison from here – from Ngai Tahu;

· All registered iwi authorities have been approached for input into a National Statement on Biodiversity.

These are just a few of the examples in which a commitment to engaging with indigenous peoples is given effect in the arrangement the Maori Party has negotiated with the Government.

But of course, indigenous rights and customs in the law, does not just stop at the point of consultation.

What we really want to know, is does it make a difference?

Well let’s start with the Takutai Moana Bill. What the 2011 bill does, in sum, is it:

· Restores the customary interests which were unjustly extinguished by the 2004 Act;

· Restores the right of Maori to have their customary marine title applications heard and determined in the High Court (again which the 2004 Act removed)

· Recognises the mana tuku iho of whanau, hapu and iwi as tangata whenua;

· Establishes the use of tikanga as a key component of the test – the test from Te Ture Whenua Maori Act;

· Provides for shared exclusivity so that multiple iwi can seek customary marine title over an area and many other aspects.

I want to come back to the whakatauaki that has inspired this address, and particularly the notion that 'when wisdom emerges, transformation occurs’.

Behind the scenes, in a raft of other legislation the Maori Party has been slowly, but surely, attempting to achieve transformation through the greatest source of wisdom – Te Tiriti o Waitangi.

Part of our coalition agreement was the commitment to a nationwide Constitutional Review which provides the nation with a chance to have a view on the significance of the Treaty of Waitangi in Aotearoa, and affords opportunity for an appreciation of tikanga and its role in determining our values and practise as a peoples.

These two issues are at the core of any discussion on the constitution of New Zealand and it is just so exciting that through this coalition arrangement, without fear or fanfare, the nation will be embarking on a process which is critical to our very foundation.

When I started looking at examples of how we have tried to advance the place of indigenous rights and customs in the law in preparing for tonight I quickly realised there was actually enough material in these last three years to fill an entire semester of lectures.

But for so much of it – while I am sure you fully appreciate the extent of its impact - it often goes unnoticed.

One of the most challenging features of the political theatre in recent months is that while there seems to be an inordinate amount of attention accorded to the rhetoric of conflict, there is so little focus on what has actually been delivered – what has been achieved through long hard hours of work in the House, at select committee, through papers written, questions asked, in hui after hui after hui.

So while the cameras have been rolling to focus on what some might call megaphone politics, we have been ploughing on with the mahi, ensuring Treaty justice is achieved in a number of ways- such as;

· The national biodiversity statement now includes a Treaty clause to recognise and provide for the role of tangata whenua as kaitiaki, when developing and implementing regional policy statements and regional and district plans;

· We convinced National to include a Treaty reference in its Emissions Trading Scheme reform

· And just last week, our Treaty clause was agreed in the legislation setting up the Environmental Protection Authority –. This was in the form of a Supplementary Order Paper – an amendment in my name which we negotiated support for from the Government - much to the angst and opposition of ACT.

Of course it is far from perfect.

Two of the private members bills I put forward – one to establish Matariki as a national commemorative day – and the other to remove GST off healthy food – have not been agreed to by the House – but they both stimulated debate. That in itself gives me room for optimism – the response to our policy idea to take GST off food has been so successful that the Labour Party has also taken in on as one of the policies!

And of course progress doesn’t happen over night. The comprehensive package of achievements we secured with ETS was only possible after I had tabled a strong minority report, and after a multitude of hui and negotiating positions.

But then when you look at some of the achievements we gained through that process there is some satisfaction in knowing that our vigilance to the paperwork has paid off including:
· $24 million allocated to insulating up to 8000 homes of low income families;
· the continuation of enviro-kura;
· reducing the price rise of petrol and electricity by some 50%;
· shifting allocation in the fishing industry to quota-holders

And we are in no doubt that there are many things left to do.

The ILO Convention 169 relating to the welfare of indigenous workers is one of those items on the indigenous agenda. New Zealand is not a signatory to ILO Convention 169 which sets out the responsibilities of governments to recognise indigenous communities and the customs and institutions that are pivotal to them.

And of course, legislation is not the only avenue in which we seek to improve the opportunities for Maori, knowing that what is in the best interests of Maori will also be in the best interests of the nation.

There is so much more we could talk about –

· the impact and momentum of Whanau Ora that my colleague Tariana Turia has led – now there’s a transformation if ever there was one;

· the immense productivity gains that Dr Sharples brought to the fore through the work of his Maori Economic Taskforce – their report released a fortnight ago revealed the incredible fact of a $37 billion asset base in the Maori economy;

· the announcement that Nga Pu Waea, the Maori Advisory Group will be working alongside telecom and Vodafone to ensure that the needs of Maori are looked after when rolling out broadband initiatives across the country; just to name three.

Finally if there is one message that I could leave this talk on ka pu te ruha, it would be that the greatest transformation that awaits us is one that every single person here can have a direct influence on – and that is the vital need and the relevance of encouraging all of your whanau and your mates to take up the greatest right of democracy by getting on the electoral roll, and taking up the opportunity to vote.