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.
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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)
Sparrowhawk/Kārearea 