The Wai 262 Claim was filed nearly 20 years ago as a reclamation of rangatiratanga for the forests, and we are still waiting for the Waitangi Tribunal to report their findings. Several of the people involved have passed away, including most of the original claimants. Their Claim remains an inspiration and reminder of our duty to Te Wao-nui-a-Tāne. Many people have contributed to the Claim, and several people have written about it, but it is largely ignored or poorly understood by the New Zealand public. The Mataatua Declaration is an international statement of rangatiratanga of all indigenous peoples for their knowledge. It was signed nearly 20 years ago, and like the Wai 262 Claim, has massive legal and governance implications. Like the Wai 262 Claim, it is largely ignored outside indigenous circles. Both these documents deserve a great deal more attention.
I spent the 1990s studying ecology at university. The Massey University Ecology Department prided itself on being the first and best ecology department in a New Zealand university. It offered no papers that looked at the environment from a Māori worldview; and within the papers that were offered, there were no classes that looked at the environment from a Māori worldview. Neither the Wai 262 nor the Mataatua Declaration were ever mentioned. Working as an academic scientist until 2005, any discussions I heard of the Wai 262 were framed around ownership: Māori want to own species, but species cannot be owned. Neither the Wai262 nor the Mataatua Declaration are about ownership of species. They are both about acknowledging mātauranga Māori, or understanding the environment from a Māori worldview; and they are both about acknowledging rangatiratanga, which includes our responsibilities to the environment.
WhakapapaWhakapapa provides a framework for making sense of the world, describing the relationships between us and the natural world (Tau: 33). In its most literal sense, it is the building of layers, and probably the aspect that most of us think of first is the generations of ancestors who came before us, and who connect us with our whanaunga, which include all of creation.
"Although the whakapapa of various tribes may vary as to the particulars, the process from which humans eventually emerge does not. Each begins with a series of abstract concepts, in genealogical form, emerging one from the other. The same order is used to describe the processes of the physical universe as they unravel. The genealogy spreads in an ever increasing web of relationships from the single ancestral source. It includes the spiritual aspects of existence that are common to all things. The bond this creates between humans and the rest of the physical world is both immutable and unseverable. It finds recognition in a single world, whakapapa." (Tomas: 40)
It is so much more than genealogy—it is a way of understanding what something is by examining how it came to be and how it relates to other things. Mikaere describes whakapapa as "a comprehensive conceptual framework that enables us to make sense of our world… whakapapa provided a means of explaining some of the great mysteries of life" (Mikaere: 1). This then is a good place to start to examine the relationship of people with our terrestrial environment, or more specifically the forests, from a Māori world view.
Te Rangihiroa describes the world as divided amongst "a number of co-equal gods, each possessing authority over independent departments of nature and human activities" (Te Rangihiroa: 443), for example, with Tāne having authority over rākau and manu (Te Rangihiroa: 439). Best called these ‘departmental gods’ (Best (a): 161), and records that the forest was often called te wao nui a Tāne, with Tāne being the principal god of the forest (Best (b): 3, 6). Rather than this being as a result of allocation of responsibilities to a bureaucracy of departmental atua, it is based on whakapapa: the forest is mainly inhabited by the uri of Tāne—trees, birds, insects, etc. We also are uri of Tāne, although we are teina to the others. Within the framework of whakapapa, our relationship with the forest includes the perspective of tuakana and teina.
Mead explains the principle of tuakana/ teina as tuakana having a higher status or social position than teina (Mead: 30). My understanding is less hierarchical than this, with tuakana and teina having different roles and responsibilities: Mā te tuakana ka tōtika te teina, mā te teina ka tōtika te tuakana (Brougham & Reed: 93). Tuakana often have more parental roles; they are responsible for learning and passing on knowledge, understanding and enforcing rules, and safety and wellbeing. Teina often have more freedom, and a need to prove themselves; they also have the responsibility to question and challenge. Tāne is an example of the role of teina, which shows that it is not about simply having lower status than tuakana. Tāne was teina to most of the other atua, and yet was the instigator and main actor in two of their most consequential decisions—to separate their parents, thus creating te ao mārama, and to create te ira tangata. Likewise, people are teina to most of creation, including the other offspring of Tāne.
Relationships, even those based on whakapapa, are fragile and need to be maintained. Whanaungatanga therefore carries obligations. Utu or reciprocity, provides a mechanism for maintaining or returning a relationship to balance by acknowledging the mana of both parties. It is a principle that avoids relationships based on dominance or ‘power over’, where one party preys upon or is made dependent on the other. Interdependence means both parties acknowledge and accept their responsibilities to the other: we have responsibilities to the forest, and the forest has responsibilities to us. Our place in the cosmogony, as teina to the forest, reflects our reliance on the forest for nurturing with food and rongoa, and protection by providing the resources for our shelter. As teina, we are responsible for accepting and acknowledging this support, and for taking only what we need. Like Tāne, we can experiment and attempt to change our situation—by clearing forests, by introducing species, by genetically altering species to better serve our wants—but we can only push the boundaries so far, and there will always be consequences. Tikanga give us guidelines for this behaviour.
TikangaWhakapapa describes the relationships among ourselves, and between us and our environment, and tikanga developed as a method for maintaining those relationships. Jackson says all Māori law is based on whakapapa: “Law was...'born' of whakapapa or 'arose' out of it” (Jackson: 61). Mead explains that tikanga “are established by precedents through time, are held to be ritually correct, are validated by usually more than one generation and are always subject to what a group or individual is able to do.” (Mead: 12) Tikanga therefore provide a means for determining what is appropriate in our relationship with the forests.
There are several well-known pūrākau that speak about our relationship with Tāne, including our rights to use the forest, and the tikanga for doing so. Examples are Tū-mata-uenga eating the offspring of Tāne, Mahuika giving Maui the knowledge of fire, and Rata neglecting to acknowledge Tāne before taking a tree to build a waka. From these, we know that we do not have authority over the forests. We may use the forests, for example as a source of food, building materials, cooking and heating, but we need to be mindful of our relationship with the environment.
This relationship has developed over many generations of learning from mistakes. For example, our tūpuna learnt that fire is effective at clearing areas of forest for cultivating and building, but that it can also burn so widely that huge areas are destroyed, and wood, rongoa and birds are no longer available. Our tūpuna learnt that some birds are easy to catch, but that focusing on one source of food for too long meant local extinctions. An important aspect of rangatiratanga was managing the needs of the whānua or hapū without damaging the local environment. Tikanga developed based on knowledge of ecological principles specific to that environment. Observing and adapting these tikanga meant that tangata whenua eventually found a balance point, where the environment was providing all that was needed, without being degraded. The knowledge and responsibilities of this, which has come to be represented by the word kaitiakitanga, simply means maintaining our side of the relationship with the forests and Tāne.
As mentioned above, kaitiakitanga is an important part of rangatiratanga. In signing Te Tiriti o Waitangi, tangata whenua were guaranteed rangatiratanga. Whether or not the Crown recognises indigenous rangatiratanga at this time, kaitiakitanga is an unavoidable obligation for tangata whenua in their relationship with the forests. Regardless of legislation, sovereignty or legal ownership, tangata whenua need to find ways to enact this relationship.
When we are talking about rangatiratanga, the distinction between tangata whenua and Māori is very important. Rangatiratanga has nothing to do with ethnicity and everything to do with whakapapa. Although I am Māori, I am not responsible for the forests of the northern iwi. Likewise, as uri of Kāi Tahu, my whānau are still not responsible for the forests of Kaikoura. My whānau whakapapa to Rakiura and Murihiku, my tūpuna were nurtured by those lands and ocean, and it is to them that we are responsible.
Current situationThe Crown does not recognise the rangatiratanga of tangata whenua. There is little provision for kaitiakitanga. Tangata whenua seldom have any meaningful control over land use.
Meanwhile, forests in New Zealand are in a bad way. There has been a huge amount of deforestation caused by people, from the clearances in the 13th and 14th centuries (eg Ogden, Lusk & Steel: 261-263), to more recent clearings following European arrival. The most fertile, sheltered and flat areas of forest have largely gone, leaving only those on mountains and steep slopes. Normal forest dynamics often involve relatively large areas of forest dying at once (Mueller-Dombois: 221-243). This relies on forests being large enough that when one portion collapses, it is only a part of the whole, and other portions are at different stages of the process. Our forests have been so reduced in size, that this process can mean the entire forest canopy dying at once. This is made more likely by forest managers preserving areas in a mature, or ‘climax’ state, based on a simplistic idea of forest cycles. Often these areas are at a stage in their cycle where the large trees are close to collapsing. Following canopy collapse, people may perceive these forests as degraded, and remove protection, allowing no chance for regeneration.
Introduced plants and animals have caused more problems. Possums were introduced, and selectively eat their favourite plants (such as mistletoes or woodrose) until those plants are locally extinct, then move onto their next favourite. Deer and goats were introduced, and have interrupted the forests’ natural succession, so there are often no young trees to replace those that have died. Weeds, such as Tradescantia, also stifle re-generation, while others, like Old Man’s Beard, overwhelm stands of trees.
Our forests are in a spiral of decline—deforestation, degradation and invasion have caused local extinctions of plants and animals and loss of habitat, which leaves the forest more vulnerable to invasion and degradation. The relationship between people and the forests has been completely ignored—for two centuries, forests have been treated as an inconvenience to be cleared, with a free source of timber as a byproduct. Ethical and political decisions involving the use of knowledge are being treated as scientific questions. It has become a relationship based on domination and ownership, rather than whakapapa.
Two moves for a solution
Wai 262In 1988, kaumātua representing Ngāti Kurī, Te Rarawa, Ngāti Wai, Ngāti Porou, Te Whānau a Rua and Ngāti Kahungunu (Ngāti Koata were to join later) met to discuss how to protect mātauranga Māori and fulfil their role as kaitiaki when plants and animals were being lost and whole ecosystems destroyed (Solomon: 10). In 1991, they filed the 262nd claim to the Waitangi Tribunal, based on breaches of Article 2 of the Treaty of Waitangi and Ko te Tuarua of Te Tririti o Waitangi. Article Two of the Treaty of Waitangi guaranteed Māori “full, exclusive and undisturbed possession of their lands and estates, forests, fisheries and other properties which they may collectively or individually possess”, while Te Tiriti o Waitangi, Ko te Tuarua guaranteed “te tino rangatiratanga o o ratou wenua o ratou kainga me o ratou taonga katoa”.
The Claim can be seen as having four parts.
1. Defines the rights and responsibilities of tino rangatiratanga guaranteed in Te Tiriti, including the rights to make decisions and benefit from those decisions over all aspects of indigenous flora and fauna (including kumara and kiore), and including the rights and responsibilities of manaakitanga, kaitiakitanga and tapu.
2. Defines Crown obligations under the Treaty, which imposes “a continuing obligation on the Crown to take active and positive steps to assist in the preservation of te tino rangatiratanga o te Iwi Māori in respect of their taonga”, and to obtain “consent from Maori on issues of tino rangatiratanga... of indigenous flora and fauna and cultural taonga.” (Wai 262 Claim: 4-5) The claim states that “any exercise of kawanatanga by the Crown... [is] in denial of te tino rangatiratanga o te Iwi Maori and… in breach of the Treaty of Waitangi.” (Wai 262: 5)
3. Outlines breaches of the Treaty and Te Tiriti by the Crown. These can be summarised as: failure to protect Māori tino rangatiratanga and kaitiakitanga over indigenous flora and fauna and other taonga, and over mātauranga Māori; having denied Māori the ability to protect these taonga, failure to protect the taonga itself; usurption of tino rangatiratanga and kaitiakitanga; and signing of international agreements affecting indigenous flora and fauna, intellectual property rights, and rights to other taonga (Ministry of Economic Development: 1).
4. Provides a list of remedies that include an apology, compensation, and recognition of te tino rangatiratanga o te iwi Māori in domestic law and international responsibilities.
Although the Claim is written in legal language, it is written from a Māori perspective. This is most clear in the reported breaches of Te Tiriti and the Treaty (sections 4-13). These sections speak explicitly of creation traditions, atua, Papatūānuku, Tāne, the importance of rangatiratanga, kaitiakitanga, manaakitanga, mana whenua and tapu in regards to indigenous flora and fauna, and the importance of cultural and spiritual values associated with specific species and indigenous forests. In addition to these, throughout the Claim the importance of mātauranga Māori, whakapapa, mana, wairua and mauri (especially in regard to genetic manipulation) are clearly central.
The Claim is not just about recognising tino rangatiratanga, it forces the Crown to acknowledge why the claimants seek it (Jackson, cited in Paget-Clarke: 2); it is about re-establishing the relationships between tangata whenua and the environment. The validity of the Claim stems from whakapapa not from concepts in Crown Law (Williams: 10). Williams argues that the Tribunal must consider the Claim from a tikanga Māori perspective “rather than commencing with Crown policies... then trying to accommodate Maori concerns in a framework... already stipulated by... Government policies.” (Williams: ix)
The Wai 262 Claim has massive implications. It is based on the rights of tangata whenua, not on the principles of the Treaty, or on rights to Aboriginal title in British law. Rather than focus on specific acts of the Crown in breach of the Treaty of Waitangi, it questions the right of the Crown to rule at all. It is a bold attempt to force the Crown, within its own legal process, to recognise the authority and need for tangata whenua in managing the environment. Additionally, it questions the Crown's presumption of rights over everything not known at the time of the signing of the Treaty/ Te Tiriti.
"From a tino rangatiratanga perspective... radical title to land and... taonga lies with the hapū of te iwi Māori and the burden of proof should properly be on the Crown to establish its rights." (Williams: 6)
Mataatua DeclarationInformation about the Human Genome Biodiversity Project deepened fears of indigenous peoples about the exploitation of their knowledge and cultural practice. Already 'bioprospecting' from the medical knowledge of indigenous peoples accounts for more than 75 % of plant-derived prescription drugs (Knudtson and Suzuki, cited in New Zealand Conservation Authority: 22). The First International Conference on the Cultural and Intellectual Property Rights of Indigenous Peoples was held over 6 days in 1993 (the United Nations International Year for the World's Indigenous Peoples), hosted by the nine tribes of Mataatua. “Over 150 delegates from 14 countries attended, including indigenous representatives from Ainu (Japan), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Surinam, USA, and Aotearoa.” (Mataatua Declaration: 1). Delegates discussed issues including: “the value of indigenous knowledge, biodiversity and biotechnology, customary environmental management, arts, music, language and other physical and spiritual cultural forms.” (Mataatua Declaration: 1)
These discussions lead to the passing of the Mataatua Declaration on the final day.
The body of the Declaration consists of four parts.
1. A list of statements. These include the right to self-determination, the common experience of indigenous peoples to exploitation of their cultural and intellectual property, the benefits of this knowledge to all humanity and their willingness to share this if their rights are protected, and a declaration that all forms of discrimination and exploitation of indigenous peoples must stop.
2. Recommendations to indigenous peoples. These are focused on regaining control over their intellectual and cultural property. They include defining that property and developing a code of ethics in regards to use, prioritising education in traditional knowledge, reacquiring lands, maintaining traditional practices, and working with other indigenous peoples.
3. Recommendations to states, national and international agencies, and their responsibilities in recognising the rights and expectations of indigenous people, and to biodiversity and customary environmental management.
4. Recommendations to the United Nations, including the responsibility for participation and representation of indigenous peoples, monitoring and action against states who damage the rights of indigenous people, adoption of the Mataatua Declaration, and an end to the Human Genome Diversity Project.
The Declaration is not written from a western legal concept of intellectual and cultural property rights, but from a radically different perspective. Because it comes from an internationally represented forum and is directed at states, the United Nations, and indigenous peoples around the world, it does not explicitly refer to Māori concepts. It is obvious though, that Māori who contributed to the Declaration saw it as an expression of the mana of indigenous peoples, tino rangatiratanga, and the tapu of mātauranga. The first statement, the right to self determination, is clearly an assertion of tino rangatiratanga of indigenous peoples. The second statement, on the exploitation of indigenous cultural and intellectual property, can be seen as asserting that their rangatiratanga has been ignored. In Māori terms, cultural and intellectual property are mātauranga. The remaining statements speak of the tapu of this mātauranga, and the rangatiratanga of indigenous peoples in relation to it. As a whole, the Declaration aims to re-establish the mana of the indigenous peoples.
The Mataatua Declaration has the potential to reshape international (and national) law and thinking around cultural and intellectual property. International law reflects Western concepts of intellectual property where the focus is exploitation of information and encouraging innovation (Ministry of Economic Development: 3). Patents are granted allowing property rights for a limited time where there is novelty and invention, but not where something is part of the 'common heritage of mankind' or the 'public domain' (Young: 2). It has been argued that this is a “terra nullius perspective” (Mead, cited in Williams: 8): it allows innovation based on generations of research and use by indigenous peoples to be patented by others, and at the same time denies indigenous people the right to protect their own knowledge if it is not novel or innovative, or is widely known. The Mataatua Declaration is focused on control over the cultural and intellectual property of indigenous peoples, and protecting it from exploitation. This has been called the clash between the underpinnings of the Intellectual Property Rights system and Indigenous Peoples Rights and Obligations (Solomon: 3, 4). At its foundation is the right of indigenous people to self-determination, and to not be subject to foreign legal concepts that always seem to lead to their exploitation.
ConclusionThe relationship between ourselves and Tāne is extremely important. Tāne is our tūpuna, and has nurtured and protected people since he was instructed to do so by Hine-nui-te-Pō. A Māori worldview sees that we are in a relationship that requires us to treat Tāne with respect, to ensure that our actions do not degrade or destroy the forests. Over generations, mātuaranga has developed to the point that there was balance in that relationship.
Western politics is still struggling to understand people as part of nature, as dependent on the environment, rather than having dominion over it. A European worldview has traditionally struggled to see other worldviews or ways of being as equally valid to itself. European law and thinking has been imposed over this land. This has led to two centuries of environmental destruction in New Zealand. Māori have resisted in many ways, maintaining a relationship with the environment as far as possible. The Wai 262 and Mataatua Declaration are two ongoing attempts to force the Crown to recognise the prior relationship of tangata whenua with this land, with the goal being to rebuild that relationship.
Like the Te Reo Māori Waitangi Claim, The Wai 262 Claim and the Mataatua Declaration show us a way forward. Just as that Claim has helped to remind us of the value of te reo Māori, so these documents remind us of the value of mātauranga Māori. I hope that they will contribute to the same sort of revitalisation for mātauranga Māori as we have seen for te reo Māori. Perhaps, as Ocean Mercier suggests, we will see mātauranga Māori recognised as an official knowledge system of New Zealand, with strategies to increase its practice in the home (Mercier: 9/9/2010).
The Wai 262 Claim and the Mataatua Declaration each provide an alternative to the currently dominant Western legal paradigm, with their authors assuming the right to determine tikanga, rather than to be trapped trying to fit indigenous values into Western legal concepts. In doing this, they each remind us of where we are: we belong to this whenua, we have the responsibility to defend and protect it according to the tikanga and mātauranga that evolved here. Those duties were never ceded to the Crown, they can never be ceded to anyone, because they are based in whakapapa. Rangatiratanga remains with tangata whenua. Both documents show that we currently do not have the power to enforce this, but they remind us why we are fighting for that power: not so that we can be successful according to Pākehā values and laws, but rather to re-establish our own values and law that work for us.
Although neither document are likely to have any immediately large effect on Crown policy, they are part of the process of grinding the Crown down, exposing the lies and injustices that it has built its sovereignty on. They are an important step in the movement towards self-determination for tangata whenua worldwide.
Mercier, Ocean (9/9/2010) Speaking at 'WAI 262 Seminar: What could Wai 262 hold for the future?' organised by VUW MBUS401 Post-graduate students
Best (a), Elsdon (1995) Māori Religion and Mythology: Part One. Te Papa Tongarewa, Wellington
Best (b), Elsdon (1977) Forest Lore of the Maori. Government Printer, Wellington
Brougham, AE and AW Reed (1987) The Reed Book of Māori Proverbs. Reed, Wellington
Mead, Hirini Moko (2003) Tikanga Māori: Living by Māori Values. Huia Publishers, Wellington
Ministry of Economic Development. New Zealand (2005) Information Sheet: Treaty of Waitangi Claim WAI 262. Ministry of Economic Development
Mueller-Dombois, D (1986) “Perspectives for an etiology of stand-level dieback” Annual review of Ecology and Systematics 17
Ogden, J, CH Lusk and MG Steel (1993) “Episodic mortality, forest decline and diversity in a dynamic landscape: Tongariro National Park, New Zealand”. Forest Decline in the Atlantic and Pacific Region Edited by RF Huettl and D Mueller-Dombois. Springer-Verlag, Berlin
Paget-Clarke, Nic (2001) “Interview with S Jackson” In Motion Magazine http://www.inmotionmagazine.com/nztrip/sj1.html
Solomon, Maui (2000) “Intellectual Property Rights and Indigenous Peoples' Rights and Obligations” Paper presented to the Workshop on Instruments for Access and Benefit Sharing from Genetic Resources and Related Traditional Knowledge Issues. Global Biodiversity Forum 15, Kenya
Tau, Rawiri Te Maire (2003) Ngā Pikitūroa o Ngai Tahu: The Oral Traditions of Ngāi Tahu. University of Otago Press, Dunedin
Te Rangihiroa (1958) The Coming of The Māori. Whitcombe and Tombs, Wellington
Tomas, Nin (1994) “Implementing Kaitiakitanga under the RMA” New Zealand Environmental Law Reporter 39
Williams, David (2001) Matuaranga Maori and Taonga: The Nature and Extent of Treaty Rights held by Iwi and Hapu in Indigenous Flora and Fauna, Cultural Heritage Objects and Valued Traditional Knowledge. Waitangi Tribunal
Conservation Authority. New Zealand (2008) “The Māori Universe” Compiled in Law 1/1: The Laws of Tāne: Compilation of Readings and Resources. Te Wānanga-o-Raukawa, Diploma in Māori Laws and Philosophy, Ōtaki
The Indigenous Flora and Fauna Claim: WAI 262 (1991)
Jackson, Moana (2008) “Whakapapa and the Beginning of Law” Compiled in Law 1.6: Whakapapa and the Beginning of Law: Compilation of Readings and Resources. Te Wānanga-o-Raukawa, Diploma in Māori Laws and Philosophy, Ōtaki
The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (1993)
Mikaere, Ani (16-17 November 2006) “Whakapapa and Taonga: Connecting the Memory” Paper presented at Te Puna Maumahara: Rōpū Tuku Iho Repositories conference. Te Wānanga-o-Raukawa, Ōtaki
Te Tiriti o Waitangi (1840)
The Treaty of Waitangi (1840)
Young, Susan (2000) “The Patentability of Maori Traditional Medicine and the Morality Exclusion in the Patents Act 1953” LLB Honours Paper, Victoria University Wellington