Monthly Archives: June 2017

Let me tell you a short story about an old court case. This case is well known to those familiar with New Zealand legal history. It involves a woman called Waipapakura from the Ngāti Hineuru hapū of Te Āti Awa. One day in 1911 she used nets on poles to go fishing in the tidal waters of the Waitōtara River. History doesn’t tell us if the fish were biting that day., just that she stuck her poles in the bed and got to work. At some point, a fisheries officer came along, told her she wasn’t allowed to do what she was doing, and took her poles and nets away. Just one small story of Māori having their practices interrupted or obliterated by Those Who Knew Better. On this occasion the woman bit back and sued the officer for the return of her nets. Keep her story in mind. We’ll return to it shortly.

The stories that others tell about us can also come to define us; even when they are false, because they often hold pieces of truth that wound, like tiny unseen shards of broken glass.

Our legal system is the source of many stories about Māori in New Zealand society, including the broad and depressing story of how we have become, in the last 40 years, a hyper-incarcerated people, arrested, locked up, and more heavily punished for criminal behaviour than our population numbers warrant.

There are other older stories too; of how Maori have been excluded, ignored, discriminated against and plundered, by way of the legal system over the course of the past 175 years or so. We need little reminding of these bad and true stories; of the lands stolen, confiscated, and lost, often completely “legally”, of customary marriages and family relationships being ignored, or trampled, of the depletion of our language and cultural practices.

In this powerful story of exclusion and loss, the position of Māori women has often been unseen, because the New Zealand legal system has also long failed to recognise women and children anyway. The notion that Māori women could have specific rights, authority, cultural expressions,  tikanga, or even opinions that required protection or attention was usually anathema to the New Zealand legal system in the the 19th and 20th centuries.

This exclusion of the voices and mana of wahine Māori began very early. In the 19th century Māori society important decisions were often made in hui rūnanga. Māori women were integral to such gatherings, as noted in one of the pro-government Māori newspapers of the time bemoaning such mana being afforded women’s voices:

…with the Maori Runanga, all must assemble together, the small and the great, the husband, the wife, the old man, the old woman and the children, the knowing and the foolish, the thoughtful and the presumptuous : these all obtain admittance to the Runanga Maori, with all their thoughts and speeches: this woman gets up and has her talk, and that youth gets up and has his…

Who ever arranged it that the (whole) village should turn-out for the settlement of disputes?…And who ever supposed that all the women and children should go and listen to the adulterous cases of bad men ?…The Pakeha’s plan in such a case is different. When a case of adultery is to be heard, neither women nor young people are allowed to hear the evidence; it is called out that they must all go outside…there are none left sitting in the Court-house on such occasions, but the male adults only. Let the Maories do likewise. Let them, by no means, allow the women and children to hear what is said about such an evil, lest they should understand all, and desire it themselves. (Te Manuhiri Tuarangi and Maori Intelligencer 10 (1 August 1861), p. 10)

The writer ultimately got his wish, and as the constitution developed over time, including the court system in New Zealand, the mana, needs and rights of Māori women became all but invisible.

Back to Waipapakura and her confiscated fishing nets. Here’s what happened.  The Court said Waipapakura had no right to use her own nets as she did, even though she was a customary owner of the land on which the fishing took place. The Court found Māori had no right to sink fishing poles into the foreshore and seabed. Only Māori rights specifically affirmed by statute could be recognised in the New Zealand courts. Her rights were not affirmed in statute, so were ignored. (Waipapakura v Hempton (1914) 33 NZLR 1065 (SC))

Many would say, rightly, that this decision occurred because the legal system has always been institutionally racist, unable and unwilling to recognise Māori customs, values, tikanga and concepts, let alone the lives of Māori women. Would things be different today? There is now precedent for recognising Māori rights over and above the Treaty, and for recognising such rights outside the express terms of legislation.

But much depends on the storyteller. The story-tellers par excellence in the legal system are judges. Judges hear the stories brought to them in the courtroom, and in judging, construct a narrative that becomes law. The majority of judges writing the stories that flow out of our courtroom and into our law are still male and Pākehā. Those factors alone don’t preclude true justice being to those affected by their decisions, what does so are the values and beliefs that such judges inevitably bring to the task of judging.

By virtue of the cases handed down to us, we know that New Zealand judges, over the course of our legal history have rarely held values and beliefs that recognised let alone respected the particular needs and roles of Māori women, or Māori generally, for that matter. But we are not bound to repeat the blindness of the past.

A forthcoming book: Feminist Judgments of Aotearoa New Zealand: Te Rino: A Two-Stranded Rope (Hart Publishing, 2017, editors: E McDonald, R Powell, M Stephens and R Hunter) shows how changing our stories can be possible. In an exercise of imagination, participants took 25 judgments from New Zealand legal history and  rewrote them, as if each judgment author was one of the judges sitting at the time of the original decision. 19 of the judgments applied a feminist lens through which to view the exact same material as the original judge. The book also incorporates 6 judgments rewritten from the perspective of mana wahine; applying thinking and analysis that upholds the mana of Māori women and centralises Māori experiences and Māori world-views in the rewriting of such judgments.

So what happened when the Waipapakura decision was rewritten as a part of the Project? Well, the judge (Emma Gattey, in this case) decides that, as an exercise of a customary right, Waipapakura was entitled to fish (even if general fishing regulations don’t allow the use of her nets) especially because she is a customary owner of the land on which the fishing takes place. In making this decision, the Court declined to follow numerous doctrines of colonial law, finding them contrary to higher authority or principle. Waipapakura, in this alternative reality, got her nets back, and her story as a provider for her people was allowed to continue.

This rewritten judgment is not mere wish fulfilment. A mana wahine-based reading of the law was possible at that time, even within the strictures of the colonial legal system.  It could have happened. So along with the other mana wahine judgments, and feminist rewritten judgments ranging between 1914 and 2015, these new (albeit fictional) stories of what could have been gives hope that the story of Māori women, and Māori generally and the legal system can change; can become different.

Time, as always, will tell her own story.

***

This post was originally published in the June/July issue of Mana Magazine.

Photo, Left to right: Julia Whaipooti, Mihiata Pirini, Jacinta Ruru Māmari Stephens, Lisa Yarwood, Emma Gattey. (Courtesy VUW Image Services)

This post was originally published on E-Tangata.

Our father died in 2012. He had been living in Australia for about 42 years. He had only rarely returned to his birthplace (Waihopo) and our ancestral tūrangawaewae in Ahipara. My 5 siblings and I, as children of the post-war urban migrations, were all raised in different landscapes, with different air and different light, but we have all, in our own ways, returned, and kept returning to that place, forming and reforming ourselves.

So when Dad died, we came together to hui. To decide what we would do. Bring him home to New Zealand (a possibility he had sometimes spoken of with wistfulness), or to bury him in Australia. We tried not to let cost drive our decision, and in the end we decided to bury him in Wamberal cemetary near Gosford, where whānau could be near him more often. It was the right call, we all felt it, and so we held a tangihanga for him at his Terrigal home. To do that we had to, as best we could, observe tikanga, with the separation of tapu and noa, the use of ritual, karakia, and manaakitanga, and we followed the direction of our oldest brother Tainui in what best to do. There was no obviously ritually bounded marae-ātea space outside the house, but visitors were called over the threshold and honoured with whaikōrero and hosted with kai, stories and laughter.

At that event, the nature of the house was irrelevant, our tikanga could weave around and through it, because we, the people, carried it, leaving no marks, no indentations in the soil.

I was reminded of those sad days recently when I heard that the dream to build a marae complex in Greystanes, western Sydney, had been dashed.

And I’m not sure I’m sorry about it. More on that later.

The dream was one cherished by three organisations, Ngā Uri o Rāhiri Inc, Te Aranganui and the Sydney Marae Appeal, to establish a marae on leased land at the Hyland Road Reserve in Greystanes.

From what I can tell this dream took a lot of time, energy and fundraising, and at the last hurdle the local authority, the Cumberland Council rejected the proposal. In the sometimes cruel and bloodless language of power that erases years of hard work, it was:

Moved and declared carried by the Administrator that Council:

1. Abandon the current process relating to the proposed leasing of the subject land

The grounds for rejecting the proposal? Well, you can burrow through this 500+ page report on the council proceedings, or just take my word for it. The main reasons given were (broadly speaking):

• lack of sufficient cultural connection between the immediate area and the local Māori population;
• issues of due diligence;
•  questions about the amalgamated groups’ ability to fund the project.

Those backing the project disagreed, of course, but for now at least, that dream sleeps.

But this was not the only marae project in Australia.  There’s one in Melbourne, with a flash website here, one in Western Australia, and probably others in the pipeline too.

It is hardly surprising, in a way, that such plans are afoot. As Paul Hamer tells us, from 2006 to 2011 the Māori (ancestry) population recorded by the Australian census grew 38.2 per cent, from 92,912 to 128,434. In fact, Paul reckons, Māori in Australia are now at least 18 per cent of all Māori. As my Dad would say, “crikey”!

Ah, wake up, says Tā Mason Durie. this kind of development was bound to happen. As he points out, there are already overseas marae. I presume he is referring to places like the highly successful Aotearoa village at the Polynesian Cultural Centre on Oahu in Hawai`i. This overseas spread is just the next step in in what Tā Mason calls ‘sustaining the Māori Estate.‘

Marae have been constructed in overseas countries where significant Māori communities now reside and as global travel increases, it is likely that overseas marae will be part of a world-wide network of marae, some based around hapū, others around communities of interest, and others still around global travellers who seek to retain a cultural anchor in an otherwise assimilating environment.

And certainly Māori have had a couple of centuries of deep connection with Parramatta in New South Wales, which was celebrated in 2014. In 1811 Ruatara had established a small farm near the banks of the Parramatta River (originally the territory of the Burramattagal clan of the Darug people) while staying with Rev Samuel Marsden, and Marsden, having purchased the land, had used the area to set up a Māori Seminary, supported by other Northern Māori rangatira such as Kāwiti Tiitua and Hongi Hika.  This area is known still as Rangihou. There are tūpuna buried there, and if there was to be a place with a strong claim for a marae, quite possibly, that was it. And those trying to establish the marae at Graystanes tried to show connection between that project and those historical roots at Rangihou, a mere 8 kilometres away.

So setting up a marae complex in overseas soil can make sense, right?

Maybe.

Except…

It doesn’t quite feel right.

Marae complexes, as built creations, are not just cultural centres. They are our cultural lifeboats; and they reach deep into the land on which they sit. As Te Rangihī​roa put it, in 1930, in written conversation with his mate Apirana Ngata, while living in Hawai`i:

The marae complex, including the whare nui and marae ātea certainly embody sacred space for Māori today.  The complex provides us with an earth-connected foundation point in the world for whānau, hapū and iwi.

And I wonder about the cost to the Indigenous peoples of Māori creating such permanent foundation points in Australia.

Let me illustrate my concern.

In May 2014 Ngāti Toa, the Porirua City Council, the Blacktown City Council and the local Blacktown community celebrated the erection of two pou in the New Zealand South Pacific Garden in the Nurragingy Reserve. The Reserve is in Blacktown, west of Sydney (roughly 25 kilometres from Rangihou), and also part of the Darug people’s land. The pou were erected to commemorate the 30-year sister-city relationship between Blacktown and Porirua.

The lead-up to this event was a little fraught. Well-known Darug elder Aunty Sandra Lee left us in no doubt as to her opinion on what was assumed to be the original proposal to have the pou erected at the entrance to the whole reserve:

“Would the Maoris like me to go over to New Zealand and hang ring-tail possums all over the place? Or kangaroos? No they wouldn’t, I know they wouldn’t, so why are they doing it to us?” she said

Ms Lee said situating the poles at the front gate would diminish the Aboriginal symbolism of Nurragingy and continue the ongoing genocide of her people.

“I’ll stand there and I’ll burn them down if I have to,” she said. “They can put them anywhere inside, no worries – but not at the gate.”

The stoush was settled, insofar as the pou were eventually erected at the entrance to the New Zealand garden only (not at the entrance to whole reserve), and there they stand today. Māori wardens rose to the fore and helped ensure Darug people were involved in the opening and unveiling of the pou.

The opening ceremony was impressive. It included a wero, karanga, an ope of dignitaries that moved to what looked like a designated marae-ātea space, a smoking ceremony fire, a Welcome to Country from Darug Elder Aunty Edna Watson, karakia, whaikōrero,  hongi & hariru. If most of those elements largely seem like the usual running of a pōwhiri to you, that’s pretty much what it looked like.

Now, there is no doubt that this event was supposed to affirm Māori identity as manuhiri, not at all as tangata whenua. But watch the ceremony and see for yourself. The overall impression (rightly or wrongly) is one whereby Māori hold the reins, control the narrative, and allow the Darug people to participate. Skip to 49′ 40″ on the video and you will see the council dignitaries, and a couple of the Darug representatives (Auntry Edna and her daughter) progressing along the hongi line and being greeted as if they were the manuhiri. 

Tears started into my eyes at that point and I felt anger. I know huge effort went into this ceremony, and I know there was aroha present and the best of intentions, and as a viewer, I couldn’t see if the other Darug elders were still on the ‘tangata whenua’ side. So my information was limited. But when should it ever be tika (correct) that any Darug elder (upon whose shoulders Māori legitimacy of place lies, after all) have ever been expected to assume the status of a visitor in this visual narrative?

The answer is never.

This is the risk we run, as Māori, when we dig into Australian soil to create places or points of belonging, no matter how well we think we have consulted with indigenous peoples. That soil is not ours and will never be ours.

That doesn’t mean to say we can’t be Māori on that soil. How can we not be? We should guard and protect and develop our cultural expressions, why not have cultural clubs and centres?

We should protect our language, our rituals, our mourning and our celebrating, even in little ways as our whānau did for our Dad in 2012.

And there he lies, ever, ever, the manuhiri.

But we must be wary of transplanting our notions of being tangata whenua to the whenua of others, and risk wreaking yet another layer of colonisation upon those home peoples.

We must never forget who we are. And we must never forget who we are not.