Kōrero Tuku Iho: Wai 262 and Protecting the Knowledge of our Tūpuna
As I sit down to write this, I’ve been re-listening to the kōrero of my whānaunga, our tohunga from Ngātiwai Hori Parata and Te Warihi Hetaraka. It’s hard not to cry when I think about how much we’ve lost, and how hard we’ve had to fight to retain and regain those things that are precious to us. Everything is personal and political, and for every dry technical report, there are hundreds of stories that connect us back to our whānau, our whenua. Connect us to the kōrero of our kaumātua, transferred firsthand (for those who were so lucky), or clawed back piece by piece in the intense process of reconnecting and relearning.
Wai 262 – the so-called flora and fauna claim – is so broad and all-encompassing it’s difficult to know where to begin. I am brought back to the Māori language text of article 2 of Te Tiriti o Waitangi, “Ko te tuarua, Ko te Kuini o Ingarani ka wakarite ka wakaae ki ngā Rangatira, ki nga hapū, ki ngā tangata kātoa o Nu Tirani, te tino Rangatiratanga o rātou wenua o rātou kainga me o rātou taonga katoa.” For Wai 262, it is the rangatiratanga over ‘o rātou taonga katoa’ which is important. As is the definition of ‘who’ – ‘ngā rangatira’, ‘ngā hapū’, ‘ngā tangata katoa’.
Like much of the inquiry undertaken by the Waitangi Tribunal, Wai 262 brings to the fore the coexistence of tikanga Māori and ture Pākehā as an uneasy one, and the problem is as much social as it is political. Permitting multiple systems based on differing cultural, belief and language systems requires an acknowledgement of the illegitimacy of a monocultural colonial system. It involves handing over power and making space.
The Wai 262 claim was lodged in October 1991 by six claimants on behalf of themselves and their iwi: Te Witi McMath (Ngāti Wai), Haana Murray (Ngāti Kurī), Hema Nui a Tawhaki Witana (Te Rarawa), Tama Poata (Ngāti Porou), Kataraina Rimene (Ngāti Kahungunu) and John Hippolite (Ngāti Koata). The inquiry covered a wide range of issues relating to cultural and intellectual property, and began in 1995, with closing submissions made in 2007.
“Tino Rangatiratanga is our ancestors’ laws which enabled us to control our taonga, to preserve it for future generations. Our ancestors did not give these customary rights of Tino Rangatiratanga away.”
– Wai 262, Brief of Evidence of Haana Waitai Murray
In 2011, the Waitangi Tribunal released its report, Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity. Yet the 2018 Section 8I Report by the Minister of Māori Development Nanaia Mahuta found that, overall, little had been done to progress implementation of the recommendations made to the Crown by the Waitangi Tribunal. In August 2019, the Minister released details on Te Pae Tawhiti, a proposed whole-government approach to addressing the issues raised in Wai 262.
Much of the dialogue around Wai 262 has focused on the natural environment, on the commercialisation of taonga species and on attempts to copyright our reo Māori by commercial entities. The implications of Wai 262 are wide-ranging, and also concern trade and international relationships (which others more qualified than me have ably commented on). As the majority of my mahi is within the built environment space, I feel this is where I am best placed to comment. However, like many Māori professionals, the intersections are innumerable, and the many threads are hopelessly tangled together.
As I try to think about what Wai 262 might mean for those of us who are involved in the work of shaping our physical environments, the words of Matua Te Warihi resonate in my mind, and ache with a painful truth: “Our knowledge base is the only thing we have left that wasn’t stolen from us ... so much stuff has been taken off us that we have nothing to share anymore. Except for our intellectual property.”
When I talk about architecture and design, I try to use language our people will understand. I talk about whenua, kāinga, whare, māra, māhinga; wānanga, kōrero, hīkoi, pūrākau. I talk about how we can make good decisions for the future by listening to the kōrero of our kaumātua and drawing on the knowledge of tūpuna. We speak of mahitahi and kotahitanga, we tell stories of our beloved dead and talk about the bright future ahead for our mokopuna. There is grieving and there is joy, and I am immensely proud of the work we are doing collectively, and the contribution I can make.
Sometimes I feel like the least knowledgeable person in the room in terms of mātauranga Māori, but standing pakihiwi ki te pakihiwi with our kaumātua makes up for what I lack, and the ability to weave everything together feels like magic. Often I feel like a translator, and because I’ve learnt to speak the language of planners and the kaunihera, I can help our people to navigate the complexities of ture Pākehā designed to alienate and marginalise.
In the design context, we are constantly challenged by the appropriation of mātauranga Māori, and there is a long history of this in visual arts and graphic design. Yet perversely, as Māori culture has gained recognition and legitimacy in a rapidly shifting socio-political environment (the post-Treaty settlement era), appropriation of mātauranga Māori has become far more widespread in the design of buildings, landscape and engineering.
“If kōrero is not right or is used incorrectly, it has the potential to alter customary laws. That is not to say that Māori did not develop in their customary laws. However, with the loose use of our kōrero today in isolation from our customs by advertisers and others, Māori are losing the meaning of many words, customs and traditional practices.
– Wai 262, Brief of Evidence of Hema Nui a Tawhaki Witana
A recent (and blatant) example is the LegendNZ Centre concept, in which Pākehā architects developed a proposal for a public building on the waterfront with the “look of a waka”, described by architect Lindsay Mackie as a “universal vessel”. Mackie is quoted in the New Zealand Herald as stating that “It could apply to any kind of boat, including a waka huia, a canoe, a yacht or a ship.” Not only is the waka huia reference incorrect, the statement also encourages a culture within the architecture profession whereby Māori cultural concepts are up for grabs, provided they are sufficiently abstracted.
Perhaps more insidious are the mainstream firms who (with or without Māori designers on staff or in positions of seniority) have forged enviable reputations as designers of Māori architecture, often lucratively and to critical acclaim. Other persistent issues include the failure by the built-environment professions to recognise and appropriately value cultural design input.
Some high-profile blunders include the failure to recognise the contribution of mana whenua designers to the new award-winning Christchurch library Tūranga, and the failure to invite the mana whenua artist involved to an awards ceremony recognising Tirohanga Whānui, a walking and cycling bridge in Albany, Tāmaki Makaurau. Ngāti Whatua artist Graham Tipene was quoted as stating "of course, those people don't see any connection between cultural design and architecture or engineering, which is why we weren't invited I'm guessing." This is hardly an antiquated practice – both examples are drawn from the 2019 industry awards season.
“Carvings are more than just designs. They are stories in themselves. They are our form of writing and are therefore beyond just design. They are something a lot more in that they are the written form of our history."
– Wai 262, Brief of Evidence of Te Warihi Hetaraka
In the forthcoming Our Voices II: The DE-colonial project, I was quoted by Rebecca Kiddle in her chapter entitled ‘#dickdesigner – How not to be one (the devil is in the detail)’. In this, I state that “Pākehā have a long history of appropriating Māori cultural concepts under the guise of a generic Kiwi identity that incorporates aspects of Māori culture in a generalised sense. Under the misguided notion that it isn’t cultural appropriation, provided it is watered down, and sufficiently generic to fall into the realm of national cultural property. This is insidious and harmful, playing into ideas of a shared national identity that ultimately justify (ongoing) colonialism. Under Te Tiriti o Waitangi, hapū have the right to control access to their narratives, and their application. As Māori, our narratives, our pūrākau, are taonga. Not everything is fair game or material for ‘inspiration’, and no, it’s not acceptable to ‘have a go at it yourself’ and then check with mana whenua afterwards to see if ‘it’s okay’.”
The LegendNZ Centre example is typical of a wider cultural problem. As practitioners, we are often placed in the difficult position of speaking truth to power while also being relatively powerless ourselves. Within the architectural profession (especially in design meetings) it's always incredibly uncomfortable and challenging for us as mana whenua or as Māori designers (whichever pōtae we're wearing) when this occurs. Those in positions of power within the architecture profession (not to mention clients) are largely Pākehā and male.
Often there is a marked imbalance of power between lead architects and Māori architects/designers and/or hapū/mana whenua-appointed designers in these settings, which can make it difficult to speak up or be heard. As ‘Māori design’ has gained increasing currency within the profession and New Zealand society more widely, this kind of thing happens far too often. The balance of power of decision-making, and the use and misuse of mātauranga Māori – considered an urgent issue in 1991 with the lodgement of the Wai 262 claim, and still in 2011 with the publication of Ko Aotearoa Tēnei – remains a critical and urgent issue in 2020.
“Our tūpuna were close to nature and lived harmoniously with nature for their mere survival. A lot of their artwork was derived from the environment around them. Contemporary Māori art still has its roots in the traditional art. It is my strong suggestions that we firstly as Māori and secondly as people of Aotearoa join together and hold steadfastly to ownership of our taonga to ensure a rich and understanding future."
– Ross Gregory, cited in Wai 262, Closing Statements for Ngāti Kurī, Ngātiwai and Te Rarawa
The appropriation of Indigenous cultural concepts, however, is by no means a problem unique to Aotearoa. Timmah Ball, Tammy Eagle Bull and others have written of this issue in other Indigenous contexts. The right to cultural knowledge is a colonial conundrum, as the more dominant culture seeks to assert and legitimise its own continued existence by appropriating and absorbing Indigenous cultures. Several international initiatives have been developed in response to this issue, such as the Mataatua Declaration, and the (somewhat contentious) International Indigenous Design Charter.
Article 31 of The United Nations Declaration on the Rights of Indigenous Peoples declares, “Indigenous Peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions.” This includes the “the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts.” Article 11 refers to restitution by colonial states (“States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs”) – but does not provide any guidance on specific processes, mechanisms or pathways towards achieving this.
Ngā Aho – our national collective of Māori design professionals – has been vocal and active in advocating for implementing findings relating to Wai 262, in calling for legislative reform, and in pushing back on appropriative and exploitative behaviours within our industries. A key part of the practice-based advocacy led by Ngā Aho and Māori design professionals has been the establishment of design guidelines, such as the now widely adopted and adapted Te Aranga Principles. The foundation of these design principles is always relationships grounded in Te Tiriti o Waitangi, and the rights and responsibilities afforded to those of us who hold mana whenua status – te mana i te whenua (authority from the whenua), te mana o te whenua (the mana of the whenua, in and of itself), te mana ki te whenua (the mana afforded through connection to the whenua).
In promoting the principles, we consistently speak of the mutual advantage and sense of place these afford – for all of us. Which holds true, but the continued emphasis on unity and public benefit is, in my view, at least in part to appease those who hold decision-making power. In comparison, redress and restitution tend to be politically unpopular, spurring public outcry around separatism and unfair advantage.
Yet, for me, the primary audience for the integration of cultural values, narratives, priorities and aspirations within architecture, landscape and urban design must always be our own people – to reinstate opportunities for active kaitiakitanga, for intergenerational transfer of knowledge, and to teach our young people the stories of their tūpuna and reinforce their identities. Creating a sense of place for the benefit of tauiwi and manuhiri is merely a positive by-product.
“There are a lot of Māori who don’t know enough about their heritage and this knocks them out as a person … To regain this knowledge and keep it alive is the reclaiming of our rights as Maori.”
– Wai 262, Brief of Evidence of Mata Ra Murray
The rights to control our collective intellectual property are afforded by whakapapa. This is an inalienable birthright. As Te Rarawa claimant Hema Nui a Tawhaki Witana states, “Whakapapa is a tie that binds us together with our environment, our taonga, our ancestors and our future”. Malcolm Peri (Te Rarawa) continues, “And whakapapa in that sense is not confining it to genealogy, but it relates to the wholeness of whakapapa, which relates to papakāinga, papawhenua and Papatūānuku. It’s a metaphorical reference that you begin at home … you involve yourself with the whenua which you belong to, and then as a consequence of that provides the process for you to broaden it to the world … What I see [in] this flora and fauna claim, is to have access to those resources, in order that we can continue this journey, and my view, while it might appear to be exclusive to Māori … this exclusiveness has to be seen as they need it for themselves, in order that they can participate in the world, and make a worthwhile contribution”.
The intergenerational chain of transmission of cultural knowledge has been broken by urbanisation and forced assimilation. It is now imperfect and fragmented. Many of those who we now rely on as our hapū cultural-knowledge holders have had to fill in the gaps in their own knowledge through the treaty claims process, through archival documents. Our taumata learn their reo through kapa haka or from kaiako from other rohe. We seek to protect mātauranga that has been lost to ourselves or preserved in pockets. The words of Te Rarawa claimant Hema Nui a Tawhaki Witana resonate:
“Since my Uncle Joe passed away, I have been alone – with no one else to talk to about these things in the way and according to the tikanga of my people. It is this which is the greatest loss. You do not know who to trust with these things anymore since the old people passed away. You do not know if people will abuse this knowledge, so you tell no one and it dies. The knowledge is what is the heart of Māori people. It is what defines us and keeps us strong. It was never meant to be this way."
– Wai 262, Brief of Evidence of Hema Nui a Tawhaki Witana
Chapter 1 of Ko Aotearoa Tēnei, the Wai 262 report, addressed taonga works and intellectual property. The Waitangi Tribunal found that “IP law protects the kaitiaki interest in mātauranga Māori or taonga works but only to a very limited extent … There is no recognition of the perpetual kaitiaki relationship with mātauranga Māori or taonga works. Nor does IP law reflect the guardianship role that is essential to kaitiakitanga … In addition, the law does not prevent derogatory or offensive use of mātauranga Māori. Rather, the focus … is on facilitating commercial exploitation.”1 Instead of reforming existing copyright law, the Tribunal recommended that an expert commission be established to provide a mechanism by which kaitiaki could prevent commercial exploitation of their taonga. Crucially, if implemented, this mechanism would need to operate at both national and regional levels.
An issues paper on the review of Copyright Act 1994 was released by MBIE in November 2018 and sought the public’s input on copyright reform. ‘Section 2 – Copyright and the Wai 262 Inquiry’ in ‘Part 8 – Other Issues’ concluded with a set of questions on how to engage with Māori on these issues. Yet the closing statements for Ngāti Kurī, Ngātiwai and Te Rarawa (dated 16 April 2007) set out a clear remedies pathway – extensive engagement throughout the motu (rohe by rohe and led by Māori), development of and adherence to an ethical framework for resolution, and the use of legislative amendments and ‘soft law’ mechanisms such as codes of ethics. This programme of work is yet to be initiated to any meaningful degree. However, the whole-government work plan set out by Te Pae Tawhiti holds promise, and is cause for cautious optimism.
“Māori should have control of their things. I even go as far as to recommend systems be put in place that enable us to have that real control over our environment and the use of it.”
– Wai 262, Brief of Evidence of Te Warihi Hetaraka
In the built-environment sphere, rules governing the use of our collective intellectual property – our mātauranga – extend well beyond copyright law, and into resource management and local government. Chapter 3 of the Wai 262 report found that the RMA has the potential to deliver on the outcomes of a Treaty-compliant environmental management regime, yet often falls short due to an unwillingness on the part of those who currently hold power to transfer those powers to hapū or iwi. The tribunal report recommended “that the RMA regime be reformed, so that those who have power under the Act are compelled to engage with kaitiaki in order to deliver control, partnership, and influence where each of these is justified.”2
Some resource management reforms were introduced in 2017, in response to recommendations made by the Productivity Commission’s Better Urban Planning inquiry, but fall short of the changes required. A review of the Productivity Commission’s draft report, completed by Ngā Aho and Papa Pounamu, provided tangible recommendations for resource management reform that remain relevant. Worryingly, new legislation (in addition to the two-part urban development legislation introduced in 2019) will soon be introduced that seeks to override the provisions in the Resource Management Act, and risks further marginalising hapū concerning Wai 262 even as we await the implementation of an all-of-government response to these findings. The reality is, new breaches of Te Tiriti happen every day.
The Wai 262 inquiry provides the foundation and an opportunity to make changes to legislation, procurement (particularly by central and local government, but also the private sector), our practices as built-environment practitioners and designers (both Māori and non-Māori), and the boundaries of our collective imagination. Structural change is complex and extends beyond ngā ture and into the realm of social and political will, eloquently summed up by the words of Sir James Henare:
“Kua tawhiti kē to haerenga mai, kia kore e haere tonu. He nui rawa o mahi, kia kore e mahi tonu.' You have come too far, not to go further. You have done too much, not to do more."
We remain vigilant as we await the outcome. Kia hiwa rā.
1 Waitangi Tribunal, Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity: Te Taumata Tuarua, Wai 262, Waitangi Tribunal Report, vol 1 p. 65 (Wellington, New Zealand: Waitangi Tribunal, 2011).
2 Ibid. p. 286