Te Pae Tawhiti: chance for Māori and the Crown to reconcile after Wai 262

Te Pae Tawhiti provides an opportunity for Māori and the Crown to reconcile after Wai 262, the Waitangi Tribunal claim concerning law and policy affecting Māori culture and identity.

The claim, lodged in 1991, was one of the largest and most complex in the Tribunal’s history. The Tribunal released its report on the claim in 2011.

Te Pae Tawhiti, proposed by the Labour-led Government in August 2019, is a work programme to address the Crown’s breaches of its Treaty guarantee to allow Māori to exercise tino rangatiratanga over our mātauranga Māori and taonga. Te Pae Tawhiti provides a significant opportunity for Māori and the Crown to develop laws, policies and frameworks to address these issues.

I think Māori ought to engage. The Labour-led Government seems to be acting in good faith. And, anyway, no government will be able to develop a fair and durable outcome without our imagination, agency and belief in the Treaty partnership. But Māori should engage cautiously.

For a few years now I have been monitoring the government’s response to the Wai 262 report by way of requests under the Official Information Act 1982. It might surprise you to learn that the government was working on a response to Wai 262 a decade ago. In 2010, the Office of the Attorney-General proposed a ministerial group, comprised of cabinet ministers from lead agencies, to lead a “whole of government” response to the report.

Compare this with Te Pae Tawhiti, in which the government proposes a Ministerial Oversight Group, comprised of cabinet ministers from lead agencies, to lead a “whole of government” response to the report.

The truth is that Te Pae Tawhiti is similar to numerous work programmes proposed to cabinet during the National Government. Unfortunately, internal memos, papers and stocktakes confirm that activities related to mātauranga Māori and taonga during that government were always ad hoc and never intended to be part of a “whole of government” response. The cost of the National Government ghosting Māori and postponing a work programme that was more or less in its present form a decade ago is yet to be calculated.

Unlike the National Government, the Labour-led Government has committed to addressing these issues with its formal, public response to the Wai 262 claim. So, I think Māori Development Minister the Hon Nanaia Mahuta should be commended for progressing this mahi. This government at least appears to be willing to understand the issues and bold enough to take the first public steps towards a fair and durable outcome.

But Māori need to be cautious about the three-year election cycle and the potential for a new government to change the policy agenda. The name Te Pae Tawhiti will probably survive a change of government, but if you expect it to retain its mana you have not been paying attention.

It will be difficult to develop a fair and durable outcome on such a complex and contentious issue. But fair and durable the outcome must be. In presenting my vision for the government’s response at the Ngā Taonga Tuku Iho Conference on Māori Cultural and Intellectual Property Rights in 2018.

I suggested that the Wai 262 aftermath is a cautionary tale about what happens when a proposal to address Māori-Crown issues fails to enable Māori and the Crown to reconcile: the government was reluctant to engage with the report; and most Māori were disillusioned by what we perceived to be a lost opportunity. In short, without reconciliation, there can be no fair and durable outcome and the same issues will be constantly re-litigated, as they are today.

It is worth remembering that the Wai 262 claimants did not want the Tribunal to propose its own frameworks for addressing the issues. The claimants only asked the Tribunal to make findings of fact that would establish the Crown’s Treaty breaches with respect to mātauranga Māori and taonga, and empower the Treaty partners to develop substantive and procedural frameworks together. But the Tribunal went ahead nonetheless. In a roundabout way, we are now at a point where Māori and the Crown can develop those frameworks together.

The substantive framework must enable Māori to exercise tino rangatiratanga – a degree of authority which incorporates a spectrum of rights and responsibilities from ownership and control, to co-ownership and co-management, to consultation – over our mātauranga Māori and taonga. Māori and the Crown will only reconcile if the full spectrum of tino rangatiratanga rights and responsibilities is available to Māori. It will not always be appropriate for Māori to claim ownership or control of mātauranga Māori or taonga. But in some cases this will be what the kaitiaki relationship requires.

The procedural framework must empower the Treaty partners to develop the substantive framework that enables them to reconcile. The government is presenting Te Pae Tawhiti as a Matike Mai-esque framework with separate Māori and Crown spheres that overlap. If the overlap represents only that the Crown will sometimes consult with Māori, Te Pae Tawhiti will surely fail. But if the overlap is a relational sphere in which the Treaty partners make decisions together, the frameworks could truly enable Māori and the Crown to reconcile in this space.