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Last Updated: 7 December 2024
Joshua Williams Memorial Prize Essay 2022
Joshua Williams Memorial Prize Essay 2022
He Kaitiaki Mana Motuhake:
A Māori Ombudsman for Aotearoa
George W P Sabonadière*
In this article, I present a proposal for a Māori Ombudsman, arguing that such an institution is needed because the Crown is failing in its obligation to make space for Māori self-determination, so that Māori have the freedom to exercise rangatiratanga within spheres of autonomy. Whilst I believe that wholesale constitutional reform will ultimately be needed to realise the vision of Te Tiriti o Waitangi,1 I argue that a Māori Ombudsman would be a uniquely valuable vanguard to advance Māori self-determination and hold the Crown to account in the interim, while providing new opportunities to develop tikanga-guided praxis in Māori-Crown relations and dispute resolution.Firstly, in Part II, I explain the right of self-determination, how it relates to rangatiratanga and Te Tiriti and why the Crown has an obligation to make space for it. In Part III, I argue that the Crown is failing in this obligation. In Part IV, I describe how our current institutions are insufficient to hold the Crown to account for these failures. In Part V, I make the case for a Māori Ombudsman to fill this gap. Finally, in Part VI, I lay out the implementation process.
In this part, I explain self-determination, how it relates to rangatiratanga and Te Tiriti, and how these concepts fit together to impose an obligation on the Crown to make space for self-determination to be realised.
* Pākehā, LLB(Hons) finalist, University of Otago. With many thanks to Mihiata Pirini for her invaluable guidance, support and supervision; Professor Jacinta Ruru for her feedback on an earlier version; and Metiria Stanton Turei for her insightful pūrākau and lessons in te mātauranga ture o te Māori during LAWS302 Jurisprudence.
A A typology of indigenous rights
Claire Charters suggests that indigenous legal claims can be broadly separated into three categories, each with a distinct conceptual basis:2
(1) Indigenous individuals’ human rights including non-discrimination;
(2) Indigenous peoples’ collective human rights to dignity, equality, freedom and redress; and
(3) Indigenous peoples’ collective rights to authority.
Categories (1) and (2) are grounded in human rights orthodoxy and thus, whilst sometimes controversial in their application, are relatively non-contentious as legal doctrines. The third category is different in that it goes beyond conventional human rights law, entailing a sui generis indigenous right to self-determination.3 This gives third-category rights a distinctly more ‘political’ flavour, testing the boundaries of what a hegemonic state will allow.4I suggest this is why our law has in recent times accommodated various first- and second-category rights such as Māori individual rights to culture,5 Māori customary land rights6 and Māori collective rights to certain resources,7 but has carefully avoided any third-category challenge
to Crown sovereignty.8 Part III of this article describes the denial of self-determination rights in more depth.
I now provide some existing definitions of self-determination and the closely related concept of rangatiratanga, and propose a framework to understand how these two concepts interrelate in the context of Māori-Crown relations.
B Self-determination
Self-determination is the international right of peoples “freely to determine, without external interference, their political status and to pursue their economic, social and cultural development.”9 It is enshrined in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which Aotearoa formally supports,10 and in the UN Charter.11 As I expand on later in this part, I concur with the view that self-determination is also reflected in Te Tiriti.12 In the context of indigenous rights, self-determination acts as a catch-all term to express the right of all indigenous peoples to exercise autonomy and preserve their ways of life. UNDRIP expresses in multiple principles the right to develop autonomous indigenous institutions and requires that “States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative measures, to achieve the ends
10229–10237.
of this Declaration.”13 In Aotearoa, one such measure is the withdrawal of Crown authority over certain areas.14
C Rangatiratanga
As UNDRIP has attracted attention in Aotearoa, parallels have been drawn between the right to self-determination and the concept of rangatiratanga.15 Rangatiratanga16 translates to ‘chieftainship’, deriving from the base noun ‘rangatira’, meaning chief.17 Mason Durie, while not providing a single definition, suggests that rangatiratanga is fundamentally about the exercise of mana/authority over matters of spirituality and Māori life, land and resources, individual wellbeing and civil rights, and the chiefly duties of Ariki (senior rangatira) in respect of their people and other peoples.18 Durie observes that rangatiratanga is, in part, about “the way in which power-sharing occurs within Māori society.”19
D A Tiriti-based framework
There is a conceptual difference between self-determination, which is a right, and rangatiratanga, which is a concept or principle. In a legal sense, rights “must not only have a holder but also a duty-bearer: who is entitled must be distinguished from who is obliged.”20 Thus, while rangatiratanga is a freestanding concept which simply describes Māori leadership, self-determination only exists in contradistinction to its antithesis (oppression) and in relation to concomitant obligations on a duty-bearer (the state).
13 Articles 4, 5, 14, 18, 19, 20, 23, 34 and 38.
In Aotearoa, Te Tiriti provides a holistic model for Māori self-determination alongside Crown governance, whereby the Crown exercises kāwanatanga subject to the right of Māori to exercise rangatiratanga.21 For Māori, then, self-determination is realised through the exercise of rangatiratanga over their own affairs, while the Crown has an obligation to make space for this to occur. This exchange of rights and obligations, representing the right-holder/duty-bearer dynamic in the context of self-determination, has been described by the Waitangi Tribunal as a “principle of exchange” giving rise to a partnership.22 According to the Tribunal, the Crown’s powers are to be exercised only subject to this obligation:23
In terms of the Treaty of Waitangi, in our view, from the day it was proclaimed, sovereignty was constrained in New Zealand by the need to respect Maori authority (or ‘tino rangatiratanga’, to use the Treaty’s term).
Self-determination, then, is an international right capable of clear expression in Pākehā law. It is something for which state authorities can provide opportunities, typically by transferring control over certain areas to indigenous peoples to be administered in accordance with their customs.24 Conversely, rangatiratanga cannot be ‘provided’ by the Crown because it already belongs to Māori as an inherent spiritual reality, having been “handed down from ancestors in trust for the future.”25 Nor is it fully explainable, applicable, or open to interrogation by Pākehā legal institutions, which are grounded not in whanaungatanga, mana and manaakitanga, but in the rule of law, the sovereignty of Parliament and the premise of individual liberty.26 In this passage, Moana Jackson describes the attempt by the colonial state to redefine and control rangatiratanga:27
In confronting the truth of rangatiratanga the Courts, the Legislature, and the Waitangi Tribunal have acted as new-age missionaries, redefining rangatiratanga to make it chaste, inoffensive, and subordinate to the imposed law which it once completely rejected ... it is always defined in a way which rejects its sovereign nature and confines its concomitant rights to areas manageable within a Pakeha constitutional status quo.
In light of this, I argue that subjecting rangatiratanga to the furnace of the Pākehā legal system to be forged into an instrument of state law does not bring us closer to the promise of Te Tiriti. Rather, I suggest that the doctrine of self-determination can serve as the means by which the Crown can be compelled to make space for Māori to exercise authority in accordance with tikanga, without affording Pākehā institutions the opportunity to dictate the scope or form of rangatiratanga. Discussing the Crown’s Tiriti obligations in terms of self-determination may also have a legitimating effect within the Pākehā legal-administrative system. As Sierra Hampton notes, “through rights-based approaches, indigenous peoples’ self-determination no longer becomes a ‘nice to have’ privilege from a benevolent state, but a minimum standard that states are compelled to guarantee.”28 So self-determination is not synonymous with rangatiratanga; it is the blueprint for a managed retreat by the Crown from areas which it ought never to have occupied.
E The Crown obligation to make space
This will, of course, require a feedback loop. The Crown cannot be expected to create space for self-determination – to be fulfilled by the exercise of rangatiratanga – without a dialogue about the spaces in which rangatiratanga ought to be exercised, and the conditions and resources required for Māori institutions to succeed. This is, in a basic sense, the kāwanatanga-rangatiratanga relationship envisaged by (among others) Carwyn Jones, who proposed the evolution of a “constitutional kōrero” as the modern embodiment of the Tiriti relationship.29In a recent interview, the Hon Kelvin Davis, Minister for Māori-Crown Relations, referred to a parable told to him by a vicar, illustrating the role of Te Tiriti:30
The vicar had said there was a river running through Aotearoa and on one side was the Māori world and on the other side was the Pākehā world. What connected the worlds to each other was a bridge called Te Tiriti o Waitangi.
In the framework I propose, the doctrine of self-determination demarcates where that river – the boundary between kāwanatanga and rangatiratanga – flows. Self-determination in action involves determining what lies on either side. Te Tiriti then provides the basis for mediating the relationship across the divide.31 The Māori Ombudsman’s oversight role would be to determine where the Crown has crossed the river into the
rohe (territory) of rangatiratanga, and to propose pathways of retreat back across the bridge.32 This is what ‘making space’ looks like in practice.33
With this conceptual framework in mind, I will now address how the Crown, and particularly the administrative state, is failing to make space for Māori self-determination.
In this part, I firstly detail a process I have termed ‘trickle-down colonialism’, whereby prevailing constitutional philosophies and government attitudes favouring a Pākehā worldview trickle down through the state apparatus and undermine Māori self-determination at all levels, to the tangible detriment of Māori. Secondly, I explain why this denial of self-determination amounts not just to a moral and political failure by the Crown, but also a breach of standards of good administration by the administrative state.
A Trickle-down colonialism
At a general level, Aotearoa’s prevailing constitutional philosophy works against Māori by refusing to make space for self-determination. Moana Jackson describes this insidious effect:34
In imposing their own myths, the fabric of their own word, Pakeha law and politics removed Maori rights and authority from their philosophical base. Colonization demanded, and still requires, that Maori no longer source their right to do anything in the rules of their own law.
Mason Durie elaborates on this, suggesting that the majoritarian, neoliberal paradigm within which the public sector operates undermines the pursuit of self-determination and further alienates Māori, whose history with the Crown has been “marred by dispossession and deculturation.”35 Charters agrees, asserting that the minority status of Māori renders them powerless, in the absence of entrenched constitutional protections, to influence the state.36 John Stuart Mill’s description of the ‘tyranny of the majority,’ by which society prevents
“the formation of any individuality not in harmony with its ways,” is aptly invoked by O’Sullivan.37
These philosophical issues trickle down into the delivery of poor outcomes for Māori by state services. For instance, the link between ideologies and practice has been identified as a high-level cause of health disparities. The Waitangi Tribunal in its Hauora inquiry heard from the Director-General of Health that “Māori have on average the poorest health status of any ethnic group in New Zealand.”38 The Tribunal concluded that the Crown not only understood the depth of inequity in the health system and failed nonetheless to ameliorate it over two decades, but in fact had no real intention of prioritising equitable outcomes for Māori to begin with.39 The root of the problem, per the Tribunal’s findings, was the Crown’s failure to make space for and support self-determination regarding the health of wellbeing of the Māori people:40
Tino rangatiratanga of hauora Māori is necessary to pursue health equity
... the primary health care framework does not recognise and properly provide for tino rangatiratanga and mana motuhake of hauora Māori.
High-level health policies have consistently ignored Te Tiriti and Māori approaches to health and wellbeing, privileging Pākehā worldviews and approaches.41 Hope Tupara describes how constitutional attitudes enable this by upholding one-dimensional, utilitarian health approaches which see Māori left behind.42 Because the issue is foundational, remedial efforts to make services culturally appropriate fail, delivering “simply a Western health service with a different look.”43 The prevalence of racism and tokenism in the policy development process also contributes to the
issue,44 as does the lack of institutional expertise and awareness of Māori concepts and values amongst health providers and practitioners.45
However, the political sphere is not the sole provenance of the Crown’s suffocating effect on Māori self-determination, and indeed this article focuses principally on the role of the administrative state, given the purview of the Ombudsman model. A recent study of Te Kawa Mataaho’s appointment and management practices for public service Chief Executives found no mention of Te Tiriti o Waitangi, the Treaty of Waitangi or even Treaty principles, and no consideration of tikanga and te reo Māori competency or experience working with Māori communities.46 This suggests a staggering disregard for the Crown’s obligations to Māori from the principal overseer of public service leadership, which no doubt has significant downstream effects. Furthermore, O’Sullivan et al argue that the Cabinet Office Circular, which lays out Cabinet’s view on Te Tiriti in the policy process, does not question the narrative that sovereignty was ceded and rangatiratanga is subservient to kāwanatanga, failing to direct policy-makers to critically consider limits on Crown authority.47 There is evidence of a lack of critical reflection: Te Arawhiti, the office established in 2018 to strengthen Māori-Crown relations, has never received a single ‘agency self-review’ from any agency, despite the process forming part of their cornerstone engagement framework.48
I have already discussed health disparities, but the effects of this systemic denial of self-determination has had detrimental effects for Māori in myriad other areas. For example, the justice system reveals stark disparities between Māori and non-Māori: according to the Waitangi Tribunal, “as at June 2016, Māori made up 50.8 percent of all sentenced prisoners in Aotearoa’s corrections system, despite comprising just
15.4 percent of the population.”49 This is more than just a statistic; it has tangible, painful effects. As McIntosh and Workman remind us:50
[Prisons] are invisible as receptacles of confined experience, as institutions of stone, concrete, wire, but most importantly as holders of flesh and blood. Prisons are peopled. In Aotearoa, they are largely holders of Māori flesh and blood.
This brutal reality brings to mind Robert Cover’s description of the violence of legal acts:51
A legal world is built only to the extent that there are commitments that place bodies on the line. The torture of the martyr is an extreme and repulsive form of the organized violence of institutions. It reminds us that the interpretive commitments of officials are realized, indeed, in the flesh.
These quotes bring into focus the fact that the Pākehā state’s commitment to hegemonic control at the expense of Māori self-determination is ultimately realised not in esoteric debates but in Māori flesh. This is but one endpoint of the Māori experience of an administrative state which does not make space.There are numerous additional examples of areas of administration where Māori self-determination has been frustrated, from the mundane (government procurement,52 official statistics53 and state archives)54 to the far-reaching (a lack of all-of-government coordination on self-determination programmes55 and widespread discrimination against Māori).56 This article is too short for a fully comprehensive review.
In its letter of transmittal accompanying the Wai 262 report, the Waitangi Tribunal stated that:57
... unless it is accepted that New Zealand has two founding cultures, not one; unless Māori culture and identity are valued in everything government says and does; and unless they are welcomed into the very centre of the way we do things in this country, nothing will change. Māori will continue to be perceived, and know they are perceived, as an alien and resented minority, a problem to be managed with a seemingly endless stream of taxpayer-funded programmes, but never solved.
The examples above demonstrate a systemic lack of Crown recognition of the right to self-determination through the exercise of rangatiratanga,58 showing that the Tribunal’s call remains unheeded. In the next section, I explain why this denial goes beyond just a moral and political failure of the Crown, amounting also to a failure of the administrative state to uphold standards of good administration.
B Self-determination and good administration
This article proposes a Māori Ombudsman, so it is important to frame the issue in terms of an Ombudsman’s role, which is principally to promote good administration.59 In essence, good administration (or ‘good government’) requires that, beyond just acting lawfully, public servants will exercise public power in a rational, consistent, justifiable, fair, reasonable and equitable manner.60 I argue that the duty to make space for self-determination ought to be regarded as a strong component of good administration, given the guidance from both executive government61 and the judiciary62 indicating that the Tiriti obligations of the Crown
apply to the exercise of public power across the administrative state.63 This also accords with the statutory role of public servants in “supporting the Crown in its relationships with Māori under the Treaty of Waitangi.”64
Charters observes that the state has, to date, sought to protect indigenous rights principally through political rather than legal means.65 Focusing on self-determination as a responsibility of the administrative state is significant because it shifts the issue from the political arena into the field of standards-based administrative oversight. This is important because the political process is an imperfect and unreliable means of protecting Māori rights; politics encourages grandstanding and adversarialism rather than productive cooperation, as evidenced by much of the history of Crown-Māori relations.66
I argue, therefore, that the administrative environment is a more promising forum in which to advance self-determination. However, this is where the next problem becomes clear: our current institutions are not structurally fit to hold the administrative state to account in this regard.
In this section, I focus on the three most prominent institutions which currently provide independent oversight of the Crown in respect of its obligations to Māori:(a) the courts;
(b) the Waitangi Tribunal; and
(c) the Human Rights Commission.
I argue that, in some way or another, all three of these institutions are inapt to comprehensively hold the Crown to account for failing to make space for Māori self-determination. I will address each in turn, and in doing so illustrate why a new institution is required.
[76], [89] and [98]; and Stafford v Accident Compensation Corporation [2020]
3 NZLR 731 at [112]–[133].
A The courts
The basic issues with court action as a method for upholding rights are well-established. Courts are formal, expensive, slow and limited to individual cases.67 For many Māori, the expense of court automatically rules it out as a viable forum in which to bring claims against the Crown, and Māori lawyers offering legal aid services or pro bono representation are already under immense pressure.68 Furthermore, it has been widely acknowledged that the court process is not well-suited to the task of resolving Māori-Crown disputes. For instance, former Chief Justice Sian Elias observed that the traditional legal process provides “hollow protection” for minority cultures, continuing:69
I doubt whether the New Zealand courts could weather the storm that any attempt to invoke structural injunctive relief to give substantial effect to declarations of the rights of cultural minorities would provoke. Putting solid flesh upon abstract declarations is not something our courts are comfortable with.
Mason Durie, Linda Te Aho and even a sitting Judge, Judge Stephanie Milroy of the Māori Land Court, have all criticised the adversarial nature of the court process, and the counterproductive effect a ‘win or lose’ mentality can have on the Māori-Crown relationship.70 It has been suggested that this adversarialism has filtered from the courts into Treaty settlement negotiations, contributing to tensions in that space as well.71 Furthermore, the Pākehā cultural paradigm within which the courts operate – even those courts that incorporate elements of tikanga Māori into their procedure – is not conducive to a proper intercultural dialogue in which Māori worldviews are fully understood and given due respect. For example, the Māori Land Court incorporates elements of tikanga Māori into its procedure and in aspects of its substantive approach to decision-making.72 Nonetheless, describing her role presiding in that
court, Judge Milroy recalled: “What was happening was something that was completely foreign and, as a Judge, I feel as though I have a split personality.”73 Milroy also observes that Māori claimants sound “less authoritative in English than in Māori when talking about tikanga”.74 The Court itself has acknowledged that court processes can be difficult and culturally inappropriate for Māori claimants.75
There is a further issue with the courts in this context, which relates to their essential function as post hoc dispute resolution bodies. By only delivering a win/lose determination on the particular issue before it, a court does not contribute to the development of meaningful relationships of mutual respect, which are important both to prevent future breaches of Māori rights and to facilitate the development of a polity in which meaningful self-determination can take place alongside Crown governance.76 As Durie succinctly concludes, “avoiding undesirable impacts rather than attempting to compensate for them after they have occurred is a more constructive goal.”77 Beqiraj et al suggest that:78
There is ... a quest for, and great interest in, alternative or complementary justice mechanisms [outside the judiciary] that address individual complaints (redress function) and also tackle systemic violation practices (redress/prevention function).
I argue in this article that a Māori Ombudsman would provide such mechanisms where the courts cannot.Finally, there are compelling reasons to reject the premise that the judiciary has any role to play in regulating Māori-Crown relations in the first place. Chief among these is the notion that ‘judicial neutrality’ is a misnomer when courts steeped in the Pākehā legal tradition are tasked with mediating between two different and often conflicting cultural paradigms and legal orders.79 This perhaps explains why Judge Milroy considers the Te Ture Whenua Māori Act 1993, even when administered by Māori judges within the Māori Land Court, an improper extension of the Pākehā legal system into an area of Māori traditional authority.80 Reflecting this view of the judiciary as an arm of the colonial state, Charters suggests that, despite the pressing need for oversight of the
Crown, “greater judicial oversight of Treaty matters upsets the theoretical premise of sovereign equality between Māori and the state”.81
B The Waitangi Tribunal
The Waitangi Tribunal performs a crucial and valuable constitutional role in Aotearoa. However, I argue that due to both jurisdictional and practical limitations the Tribunal alone cannot adequately hold the Crown to account for breaching its duty to make space for Māori self-determination.
The Tribunal currently has jurisdiction to investigate any claim brought by a Māori person that they, or a Māori group of which they are a member, are or are likely to be prejudicially affected by any primary or secondary legislation, or any policy, practice, proposal, act or omission by or on behalf of the Crown, which allegedly breaches the principles of the Treaty (generally excluding any proposed legislation).82 Broadly, this means that the Tribunal can investigate any alleged contemporary breach of Treaty principles by the Crown or Crown agents, and any law which is alleged to be in breach of Treaty principles. This presents two major jurisdictional limits on the Tribunal’s ability to oversee Crown compliance with its obligation to make space for Māori self-determination:(a) The Tribunal is limited to reactively investigating matters raised by claimants; and
(b) The Tribunal is limited to investigating claims through the lens of Treaty principles.83
The first limitation means that the Tribunal cannot proactively pursue issues which have not been specifically articulated in the form of a claim. The Tribunal has remediated this to some extent through its kaupapa inquiry programme, which involves the thematic grouping of claims, however this is an imperfect solution for two reasons. Firstly, while kaupapa inquiries expand the scope of the Tribunal’s investigations, they still fall short of providing a comprehensive review of Crown conduct in the designated area, as noted by the Tribunal itself:84
The purpose of a kaupapa inquiry ... is not to conduct a general exploration of all aspects of its thematic topic or of the totality of Māori experience of Crown actions and omissions. Rather, it is to investigate and make findings on the Treaty breaches and prejudice alleged by the claimants in respect of the kaupapa issue or issues of national significance that fall within the scope of that topic.
Secondly, kaupapa inquiries are still essentially reactive, relying on the foresight of astute claimants to identify potentially harmful policies or practices in lieu of robust institutional monitoring.
The pitfalls of a principles-based approach to Tiriti jurisprudence are well-traversed.85 I do not seek to add anything new to that discussion, save to say that the singular focus on the ‘principles of the Treaty’ imposed on the Tribunal by statute is regrettable. I agree with Carwyn Jones’ characterisation of Treaty principles as “a pragmatic dilution of the meaning of the Treaty” designed to ensure compatibility between Te Tiriti and Crown sovereignty.86 I also share his concern that an interpretative approach based on the principles alone keeps legal analyses of Crown actions vis-à-vis Māori firmly rooted in the Pākeha legal order which, by necessity, holds Crown sovereignty to be self-evident.87 This is not merely conjecture; Moana Jackson, excoriating the Tribunal’s conclusions in the Wai 262 inquiry, lamented with characteristic poeticism that:88
... the Tribunal is a Crown institution bound by a stubborn Crown perspective on the Treaty relationship – a perspective which maintains that in 1840 the Crown somehow gained control of our land and power through a cession of ‘sovereignty’. Indeed, although we have spent years doing the research required to ‘fit’ our histories within the juridical parameters of what constitutes a breach of the ‘Treaty principles’, we have always known ... that like any independent people, Iwi and Hapū would not have ‘ceded’ any power to anyone ... [and] that our tipuna in 1840 signed a set of words in the reo, and not a set of principles they could not see or hear.
The Tribunal’s focus on Treaty principles thus contributes to the continued denial of Māori opportunities for self-determination through the imposition of these “juridical parameters” on claimants, and the associated legitimation of Crown sovereignty. The effect is that claimants in the Tribunal cannot express their grievances without conforming to paternalistic, ex post facto constructs like “participation” and “active
protection,” and cannot expect remedies which transcend the boundaries of the colonial state.
C The Human Rights Commission
So far, I have argued that institutional oversight of the Crown’s obligation to Māori self-determination must be free from the shackles of Pākehā law and its insidious faux-pluralism, which Moana Jackson termed the “Pākehā legal straitjacket”.89 The Human Rights Commission could, at surface level, be considered an appropriate institution to perform this oversight role; it operates at arm’s length from government and has a broad ambit to inquire into, report on and make statements about matters concerning human rights, including indigenous rights.90However, there are three limitations which I suggest render the Commission an unsatisfactory institution to carry out this role. Firstly, there is no Māori representation on the Commission, with the role of Indigenous Rights Commissioner having been effectively abolished after funding was withdrawn in 2017 and denied again in subsequent budgets.91 This connects to a larger problem with the Commission: as a crown entity, it is vulnerable to politically motivated funding cutbacks.92 As I explain further on, an Ombudsman would be less vulnerable in this regard. Secondly, the Commission’s dispute resolution function is limited to statutorily defined categories, such as race and gender-based discrimination.93 Consequently, its quasi-adjudicative capacity is limited to the first two categories of the indigenous rights typology, and excludes the third (collective authority rights). This relates to the fact that third category rights go beyond the traditional jurisprudential parameters of ‘human rights’.94 Finally, the Commission lacks the institutional influence and seniority to guarantee effective oversight. The government has been criticised for its dismissive attitude to the recommendations of human rights bodies,95 and the Commission has itself been criticised for lacking impartiality.96 For these three reasons, I do not think the Human Rights
Commission is the optimal body to oversee the Crown in respect of Māori self-determination, though its work in upholding the first two categories of indigenous rights in the human rights space is valuable.97
I have described the challenges Māori face in the path to exercising rangatiratanga in accordance with Te Tiriti, and in particular the barrier that is the Crown’s failure to make space for self-determination. I have also explained why, in my view, the courts, the Waitangi Tribunal and the Human Rights Commission are not capable of providing the oversight necessary to hold the administrative state to account in this area. Against this backdrop, I argue that an institution with the following attributes is required:(a) Expansive jurisdiction and powers to oversee the public sector;
(b) Maximum independence from the Crown, including in resourcing decisions;
(c) The ability to both reactively investigate complaints and proactively initiate inquiries;
(d) Kaupapa Māori foundations and tikanga-based procedures; and
(e) Institutional standing, visibility and mana, particularly amongst Māori communities and institutions.
I argue that the best pathway to create such an institution within the current constitutional framework is to appoint an Ombudsman to be responsible for the kaupapa I have described, with the functions, powers and jurisdiction provided by the Ombudsmen Act 1975.98
A Advantages of the Ombudsman model
Simply put, an Ombudsman is a person appointed by Parliament “as a watchdog to ensure the machinery of government operates in a fair and reasonable manner.”99 In Aotearoa, Ombudsmen are officially designated Commissioners for Investigations, which is a more self-explanatory title.100 The Ombudsman model has a number of advantages. First and foremost, the jurisdictional scope of the Ombudsmen Act is very broad. Ombudsmen may investigate and report on approximately 4,000 public agencies and bodies, including government departments and ministries, crown entities, state-owned enterprises, local government bodies, tertiary
education institutions and school boards of trustees.101 An Ombudsman’s jurisdiction extends to:102
... any decision or recommendation made, or any act done or omitted ... relating to a matter of administration and affecting any person or body of persons in his or its personal capacity ...
While not defined in statute, a “matter of administration” has been interpreted to include virtually any exercise of public power or activity of government outside of the legislative and judicial spheres, excluding the direct decisions of Ministers.103In addition to overseeing a broad range of activities across a broad range of agencies, Ombudsmen also enjoy substantial flexibility in the conclusions they may reach. Whilst judicial review is concerned solely with the lawfulness of exercises of public power,104 Ombudsmen take a step back and examine government activities through the lens of good administration, which is broader and more normative than a strictly legal approach. In a recent opinion, Chief Ombudsman Peter Boshier made the following statement:105
I acknowledge immediately that legal compliance is an essential condition of good administration, but it is not by any means a sufficient answer to an investigation under the Ombudsmen Act ... the potential for redress by the Ombudsman for perceived maladministration is (despite its non-binding nature) arguably more effective than the law by being ... wider than applies to purely legal scrutiny.
An Ombudsman may conclude that a decision/recommendation/act/ omission “appears to have been contrary to law”; was “unreasonable, unjust, oppressive, or improperly discriminatory” or was made in accordance with a law or practice which could be so described; “was based wholly or partly on a mistake of law or fact”; or simply “was
188; and see generally Philip Joseph and Jason McHerron Laws of New
Zealand The Foundation of Judicial Review (online ed) at [3].
wrong”.106 This allows broad discretion to lay down the parameters of good administration without being hamstrung by the complex rules of administrative law. Further flexibility is afforded by the range of recommendations an Ombudsman may issue, which are virtually unlimited but include advising that in their opinion a matter should be reconsidered, a decision should be cancelled or altered, or the laws or practices underpinning the matter should be reconsidered or changed.107
This broad jurisdiction would allow a Māori Ombudsman to investigate a wide range of public bodies and make a variety of recommendations for the advancement of Māori self-determination, including proposals to reform current laws and practices. Such a wide ambit provides an opportunity for oversight of the Crown which is not available through the courts, which are limited to questions of law; the Waitangi Tribunal, which can only investigate breaches of Treaty principles; or the Human Rights Commission, which focuses only on human rights issues and devotes little attention to Māori issues.
In addition to this jurisdictional breadth, the Ombudsman model has a range of other advantages. An Ombudsman’s services are free for all to access,108 and complaints are typically resolved relatively quickly.109 As an officer of Parliament, an Ombudsman is genuinely impartial and free from government control, both functionally and financially.110 Ombudsmen also have expansive powers to require the furnishing of any document or information by any person regardless of any statutory obligations of secrecy or confidentiality;111 examine under oath any public servant or complainant (or, with the permission of the Attorney-General, any other person);112 enter the premises of any agency under their jurisdiction to conduct an inspection or investigation;113 and publish reports relating to their general functions or to particular cases.114 These powers can be delegated to an Ombudsman’s staff to allow for the efficient investigation of a large volume of complaints and inquiries.115
Ombudsmen are afforded substantial latitude to determine their own procedure in regard to the exercise of these powers and the performance of their statutory functions.116 As I explain later, this latitude would allow a Māori Ombudsman to carry out their work as provided by statute but within a kaupapa Māori operational model.
Finally, the Ombudsman model also has the advantage of being both reactive and proactive in its approach. Whilst a large amount of work is carried out in service of the ‘complaints’ function, whereby complaints from the public are investigated, Ombudsmen may also initiate ‘own motion’ investigations into matters of a specific or general nature which they deem to be of particular concern.117 Beqiraj et al summarise the benefits of this dual role thus:118
... ombudsmen have the benefit of being able to bring about change at a wider level and thus conduct an ongoing ‘audit’ of public behaviours that are brought to light through individual complaints, as well as through their own investigations. The wide ambit of Ombudsman activities therefore contrasts with the review of individual claims that takes place before courts and tribunals, which can generally only make determinations relevant to a particular case ...
This ‘audit’ capability would allow a Māori Ombudsman to oversee government action (or inaction) on matters of Māori self-determination across the board and investigate proactively where progress is sluggish or current practices do not meet the Crown’s obligations. This proactivity, combined with the independence of Ombudsmen as officers of Parliament, could also enable a Māori Ombudsman to provide the kind of impartial check on government policy and proposed legislation which the authors of the He Puapua report noted was lacking in Aotearoa’s constitutional structures.119 Ombudsmen regularly make submissions on Bills, using their institutional standing to advocate for amendments which advance the interests of good administration120 –
unlike the Waitangi Tribunal and,121 for reasons of comity, the courts.122 Parliamentary committees may also refer petitions to an Ombudsman, while the Prime Minister may refer any matter for investigation.123 There are therefore a range of ways in which a Māori Ombudsman could act as a sounding board for legislators and policymakers and, in doing so, advocate for the rights of Māori to self-determination.
B Advantages of a Kaupapa Māori approach
The advantages described above, which are inherent to Aotearoa’s Ombudsman model as established by statute, demonstrate how the model fulfils the first three attributes enumerated at the beginning of this section. However, setting up an institution which also has the final two attributes – Kaupapa Māori foundations and tikanga-based procedures; and institutional standing, visibility and mana – will require going beyond the statutory framework. I argue that the Ombudsmen Act is sufficiently flexible, particularly in regard to the regulation of an Ombudsman’s procedure and the hiring of staff, that a Māori Ombudsman could establish an office which operates in a novel and ground-breaking way, exercising the functions and powers of the statutory office in a manner guided and shaped by tikanga and mātauranga Māori. This institution would act as an independent advocate for the right of Māori to self-determination, sitting outside the sphere of executive government and protected by strong constitutional conventions whilst wielding significant statutory powers.The progress that the existing Office of the Ombudsman has made in advancing Māori rights is a testament both to the work of Ombudsmen past and present and to the suitability of an Ombudsman model in this area. For example, the A Matter of Urgency report into Oranga Tamariki’s newborn child uplift policies and practices shone a light on a range of structural issues, with a particular focus on Māori families;124 the Chief Ombudsman’s opinion regarding the proposal to construct the National Erebus Memorial near a significant pōhutukawa tree gave an opportunity for mana whenua to be heard and held the Ministry to account for its lack of consultation;125 and the own-motion investigation into the Department of Corrections which is currently underway will
examine the Department’s treatment of inmates through a Tiriti lens.126 These investigations have no doubt benefited from structural changes implemented within the Office to create a more bicultural environment, including establishing a new team to provide guidance on Māori engagement127 and appointing a Māori advisory board to “provide Te Ao Māori expertise and intellectual cultural capital, as well as guidance and assistance to the Chief Ombudsman”.128 The current Chief Ombudsman has also built a strong relationship with the Kiingitanga, furthering the commitment to bicultural reform.129
1 The limits of bicultural reform
Despite this progress, biculturalism within Pākehā institutions has its limitations as compared to the establishment of autonomous Māori structures. O’Sullivan states that:130
Bicultural reformism accepts the institutions and regulations of the majority culture and assumes that reforms to these can make them responsive to Maori, while surrendering little in the way of the cultural practices and values of the majority ... Biculturalism is advantageous to Maori in that it demands a Maori input into decision-making and accounts for incremental developments towards a society respectful and tolerant of cultural difference, but it cannot substantially advance Maori autonomy ...
In other words, while biculturalism allows some room for Māori input and cultural influence within institutions, this occurs on the margins with Pākehā values and practices remaining preeminent.131 Arguing that bicultural reform alone is not sufficient, Moana Jackson posited that:132
The solution for me in the long term is quite simple really ... rangatiratanga must also one day include again the right of Māori to dispense justice in Māori terms by Māori and for Māori.
This call for autonomous Māori institutions, and similarly my call for a Māori Ombudsman, is rooted equally in principle and in pragmatism.
On the first point, I suggest that, given the historic role of Pākehā legal institutions in the subjugation of Māori value systems and ways of life, simply adorning those institutions with the trappings of Māoritanga as an alternative to establishing Māori institutions seems inappropriate.133 Of course, reforming the Office of the Ombudsman to be more culturally responsive is a positive step; I simply suggest that, in the context of Māori self-determination, there is also value in having a new figure who does not appear to walk and talk like the Pākehā institutions which have themselves displaced and undermined rangatiratanga.134 O’Sullivan, concluding that “self-determination ... arises from a Maori political context, so its focus can be unmistakably Maori in a fashion that biculturalism cannot allow,” underscores the importance of a Māori-led approach.135 The role of this Ombudsman would be to stand on the bridge and survey both sides of the Tiriti landscape, not to perch on the bank of the Pākehā side and peer across through bicultural binoculars.
Secondly, I consider that entrusting this role to an Ombudsman with a Kaupapa Māori approach would have several practical advantages.136 These can be broadly characterised as:
I will explain each in turn.(a) A strong relationship with Māori
Most obviously, a recognisably Māori institution would be more likely to secure the trust, confidence and support of Māori communities, individuals and groups (which the existing structure has struggled to attract)137 providing a crucial pillar of legitimacy to a nascent constitutional enterprise. It is crucial for the efficacy of such an institution that Māori see their cultural values and practices reflected in its operations and feel comfortable accessing and engaging with it.138 Additionally, expertise in te reo Māori and tikanga Māori would support the capacity of the office to deal with Māori claimants in a culturally safe way.
(b) Appropriately adjudicating Māori rights issues
A Māori Ombudsman with knowledge of and familiarity with tikanga and the Māori legal order (along with similarly qualified staff) would avoid one substantial challenge in the adjudication of Māori rights issues: the treatment of Māori law, as Justice Joseph Williams put it, “as a conflict of laws question in which judges must be educated case by case through expert evidence as to the content of that law.”139 This treatment of Māori concepts and values as ‘foreign’ subjects by non-expert adjudicators has a multitude of negative consequences, including the narrow definition/ translation of concepts outside of their wider philosophical framework;140 interpretative issues in translating generalised non-legal advice into
legal interpretations;141 the misuse or manipulation of Māori custom;142 the dilution of concepts in order to communicate them to non-experts;143 and institutional distrust of Māori law.144 Furthermore, the very assertion of “classificatory authority” over Māori concepts by Pākehā institutions inherently undermines rangatiratanga, even setting side any concrete negative effects this classificatory process might have.145 As Judge Milroy makes clear, there is value in familiarity:146
[Tikanga] is quite hard to articulate – all you have to go on is instinct, when you feel when something is right or feel when something is going wrong or just doesn’t feel right.
By having knowledge of and familiarity with tikanga and the Māori legal order, a Māori Ombudsman would be well-equipped, in this regard, to apply that knowledge to what Ombudsmen do best: use good judgement, exercise discretion, and know when something just doesn’t feel right.(c) Complementing the work of the Waitangi Tribunal
A Māori Ombudsman could work effectively alongside the Waitangi Tribunal to complement its functions in a mutually advantageous way. There have already been instances of this sort of cooperation. For example, the Waitangi Tribunal in its urgent inquiry into Oranga Tamariki relied heavily on the findings of the Chief Ombudsman’s own investigation, and delivered its report with the intention that it be used in tandem with the Ombudsman’s report to develop a government response.147 I suggest that a Māori Ombudsman undertaking regular investigations in a Kaupapa Māori way would assist the Tribunal to a considerably greater extent, while also adding a valuable perspective and source of guidance into the wider ecosystem of state institutions, lawyers, academics and civil society.148
Tamariki Urgent Inquiry (Wai 2915, 2021) at xviii, [2.5], [3.7.4.7], [4.3.1],
[4.4.5.1.2], [4.4.7.1], [4.4.8.1], [5.4.2.1], [5.4.3.1], [5.6.9], [6.4] and [6.4.4.2].
This could also work in the other direction, with a Māori Ombudsman overseeing the Crown’s compliance with Tribunal recommendations as part of their general statutory role in encouraging good administration. There is precedent for this: the Parliamentary Commissioner for the Environment (who is also an officer of Parliament) has in the past monitored the Crown’s compliance with Tribunal recommendations regarding environmental management,149 while compliance with Tribunal findings regarding prisoners’ rights has been considered by the Chief Ombudsman and others.150 A Māori Ombudsman could fill a substantial gap by regularly monitoring Crown compliance with Tribunal recommendations as a matter of good administration.
(d) Developing tikanga-based dispute resolution practices
Given the centrality of whanaungatanga and relationality in te ao Māori, Māori dispute resolution is focused on the establishment or restoration of good relations between the parties involved and their wider groups. On this basis, I argue that a Māori Ombudsman would provide an optimal environment for the development of tikanga-based dispute resolution methods by which to mediate the Crown-Māori relationship in pursuit of self-determination.
I suggest in particular that the “Take-Utu-Ea” process described by Tā Hirini Moko Mead is a viable framework through which the Māori Ombudsman could identify issues, investigate them and issue recommendations to repair relationships and move closer to Māori self-determination.151
The Take stage refers to the undertaking of an inquiry process (whakawā) to establish, by consensus, whether a hara or wrong has occurred.152 In practice, this would be equivalent to the investigation stage of an Ombudsman’s inquiry, but fashioned according to tikanga.153 For example, an Ombudsman could employ what Ware, Breheny and
Protocol to the Convention Against Torture (OPCAT) – 1 July 2016 to 30 June 2017 (Human Rights Commission, 2017) at 3.
Forster coined a “Kaupapa Kōrero” approach, using Māori narrative techniques such as whakataukī (proverbs), waiata (songs) and pūrākau (storytelling) along with elements of ritual to understand and analyse claimants’ testimony in the context of tōna ake ao (personal experience), tōna whānau (wider family and community experience), te ao Māori (the Māori world) and te ao whānui (broader historical, socio-economic and political context).154
The Utu stage refers to the rebalancing of the relationship or the remediation of the hara, which aligns with an Ombudsman making findings and recommendations.155 There are, I suggest, many parallels between traditional methods of carrying out utu and certain methods of redress used by Ombudsmen.156 For example, the concept of muru (broadly, a penalty or compensation for a wrong)157 is not dissimilar to the practice of ex gratia payments, which have been frequently recommended as a form of redress by successive Ombudsmen.158 An analogy can also be drawn between the concept of whakamā (shaming) and the Ombudsman’s practice of denouncing officials and institutions for poor conduct.159 Finally, processes based on the concept of Hohou i te Rongo (peace-making) could be developed where major issues are identified and there is a need to repair severely damaged relationships between the Crown and Māori communities/groups.160 There are a range of different peace-making procedures depending on the level of discord between the parties – including, relevantly here, the withdrawal of a group from disputed territory161 – allowing a Māori Ombudsman to follow a range of processes depending on the circumstances.162 Some inspiration could perhaps be found in the traditional role of the takawaenga, a mediator or emissary skilled at resolving disputes.163
The final stage, Ea, refers to “the final, desired state ... a state of satisfaction where a sequence has been successfully closed, relationships have been restored, or peaceful interrelationships have been secured.”164 In practice, this would be the acceptance and, ideally, implementation of the Ombudsman’s recommendations. The Māori Ombudsman, in carrying out the aforementioned ‘audit’ function, could monitor compliance with recommendations and resolutions to ensure that this state of satisfaction endures in the interests of progressing the self-determination kaupapa.
These ideas are but a starting attempt to elucidate the idea of a Māori Ombudsman as an innovator in tikanga-based dispute resolution. The crucial factor is the flexibility afforded to whoever might take up this role to carry it out as they see fit, ensuring that the essential link between indigenous paradigm and method is maintained.165 In addition to the advantages I have already described, the Ombudsman model provides this flexibility in a similar way to traditional processes of Māori justice: by resisting rigid adherence to precedent or rules of law, instead favouring an approach rooted in principles and underlying values.166 This echoes the flexibility of tikanga Māori to adapt to evolving conditions. Tikanga’s flexibility is important to emphasise, given that it has at times been treated as fixed and immutable by Pākehā observers.167 As Friedland and Napoleon proclaim:168
Law is not fruit: it is not something waiting to be plucked from branches, nor can it be “preserved.” All law, by its nature, is actually made and remade through people seriously applying themselves to deeply engage with it and struggling to make it their own.
Applying this notion to the Māori Ombudsman, I argue that this institution could play an important role in developing modern, tikanga-based approaches to remedying Crown breaches of the duty to make space for Māori self-determination. In practice, as I have illustrated above, the role would be akin to the “Indigenous bricoleur” described by Jenny Lee. The bricoleur is an innovative and knowledgeable problem-solver
who weaves together diverse practices and epistemologies to produce solutions.169
C Wider constitutional conversations
In discussing the various benefits of the institution I have proposed, I have described the ways in which a Māori Ombudsman might meaningfully advance Māori self-determination by overseeing the conduct of the Crown. However, it is important to caution that this is not a panacea. To achieve the kind of constitutional paradigm envisaged in Te Tiriti, I believe we must one day break out of the Pākehā legal straitjacket altogether and craft a new state in which rangatiratanga is achieved not merely in pockets of autonomy, but in substantial Māori self-governance.170 That is not the focus of this article, so I simply reiterate that the Māori Ombudsman is proposed not as an ultimate solution but as an interim step to protect the right to self-determination in the here and now – and, perhaps more importantly, as a vanguard to push the envelope further in the direction of Tiriti-based governance.
I suggest nothing ground-breaking in regard to the implementation of this proposal; I simply aim to clarify the process for readers unfamiliar with the relevant legislation and procedure, while suggesting some modest changes in regard to the appointment of a Māori Ombudsman.
A Appointment
The Ombudsmen Act provides that the Governor-General, on the recommendation of the House, shall appoint “1 or more Ombudsmen.”171 In practice, the appointments process is managed by the Officers of Parliament Committee in consultation with the relevant Minister and other interested Members of Parliament (MPs).172 I suggest the Minister for Māori Development and/or Crown-Māori Relations should be consulted on the appointment of a Māori Ombudsman, and MPs representing Māori electorates may take a particular interest as well. I also suggest that the criteria for appointment be updated to reflect the importance of an understanding of Māori law and a familiarity with te ao Māori for the role of Māori Ombudsman.173 The Committee generally only recommends appointments by unanimous agreement, with all parties in
Officer of Parliament (November 2002).
the House being consulted on the nominee, ensuring impartiality.174 By convention, the House approves recommendations unanimously, with opposition parties affirming their confidence in the new Ombudsman.175 Other than the changes I have already proposed, I do not suggest any radical reform of the appointments process for this role.
B Multiple Ombudsmen and portfolios
At present there is only one Ombudsman in Aotearoa, Chief Ombudsman Peter Boshier. This has not always been the case; in fact, he is the first to serve alone since 1975.176 The historical norm has been to have two or three (or even four) Ombudsmen serving concurrently, with one designated Chief Ombudsman.177 It would not be extraordinary, therefore, to appoint an additional Ombudsman as I have proposed. My suggestion that an Ombudsman could be appointed to carry out a particular ‘portfolio’ of work is also not unprecedented; when the Ombudsmen Bill proposed the creation of multiple Ombudsmen, the possibility of separating the central and local government portfolios was discussed, as was the option of Ombudsmen for different geographical areas.178 I argue that in light of this history, the idea of a Māori Ombudsman is not an outlandish suggestion. In fact, I am not the first to raise it; the concept was floated as early as 1967 and has resurfaced again in recent years.179I see no reason why such an institution could not coexist with the Chief Ombudsman, employing separate staff and following different investigative processes. Matters of corporate administration, for example renting office space, paying staff, preparing appropriations requests and maintaining IT, branding and public communications, would, I imagine, remain the responsibility of the Chief Ombudsman, who would also be responsible for redirecting complaints relating to Māori self-determination to the Māori Ombudsman.180 There is also no reason why the Māori Ombudsman could not cooperate with other Ombudsmen, for instance on large own-motion inquiries which involve matters of Māori self-determination, and this may be of mutual benefit.
<www.ombudsman.parliament.nz>.
In this article, I have introduced the idea of self-determination as a right of Māori imposing a concomitant obligation on the Crown to make space, and argued that the Crown has consistently failed to uphold this obligation, frustrating Māori efforts to assert rangatiratanga. I have also outlined the deficiencies in our current institutions which render them unable to effectively and comprehensively oversee the Crown and hold it to account for these failures. Finally, I have proposed the appointment of a Māori Ombudsman to fill this role and perform the functions of a government watchdog with a uniquely Kaupapa Māori approach.There is some way to go before substantial Māori self-determination is realised and space is made for the exercise of rangatiratanga within spheres of autonomy; and longer still before our constitutional arrangements reflect the promise of Te Tiriti rather than the ambitions of settler colonialism. However, I argue that the appointment of a Māori Ombudsman is a step which can and should be taken to advance that progress within the confines of our current constitution and lead the way into a new area of tikanga-guided Crown-Māori relations and dispute resolution.
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URL: http://www.nzlii.org/nz/journals/OtaLawRw/2023/9.html