Houghton, Jayden --- "Wai 262 response: Government strategy for Māori engagement" [2023] OtaLawRw 7; (2022) 18 Otago LR 109

Last Updated: 3 January 2025

Wai 262 Response: Government Strategy for Māori Engagement

Wai 262 Response:

Government Strategy for Māori Engagement

Jayden Houghton*

I Introduction

In 1991, the Wai 262 claim was lodged in the Waitangi Tribunal¹ and sought redress for the Crown’s breaches of its guarantee under te Tiriti o Waitangi 1840² to allow Māori to exercise tino rangatiratanga (the unqualified exercise of our chieftainship) over our mātauranga Māori (the body of knowledge originating from Māori ancestors, including the Māori worldview and cultural practices) and taonga (tangible and intangible treasures).³ The Tribunal investigated and released its report on Wai 262,⁴ and the New Zealand Government responded by proposing Te Pae Tawhiti: a work programme to address Wai 262.⁵ In 2019, the Labour-led minority coalition Government proposed the work programme as an Overlapping Spheres Model, comprising a space in which Māori exercise authority (tino rangatiratanga), a space in which the Crown exercises authority (kāwanatanga) and, where they overlap, a space where the authorities interact.⁶ In 2022, the Labour majority

* Rereahu Maniapoto. Lecturer, Faculty of Law, University of Auckland. The author thanks Arela Jiang, Desmond Yong, Britney Clasper, Melissa Connolly, Nicholas Goodman, Jorja Heta and Tara McGoldrick for their research assistance. All errors remain my own.

1. The Waitangi Tribunal is a New Zealand permanent commission of inquiry charged with investigating and making recommendations on claims brought by Māori relating to the Crown’s breaches of the Treaty of Waitangi. See Treaty of Waitangi Act 1975. See also Treaty of Waitangi Amendment Act 1985.
2. The Treaty of Waitangi was signed between the British Crown and some Māori in 1840. It is considered a founding document of New Zealand. There is an English language version and a Māori language version. The Māori language version is titled te Tiriti o Waitangi.
3. See Statement of Claim (Wai 262, 9 October 1991). See also First Amended Statement of Claim (Wai 262, 10 September 1997).
4. Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011) vols 1 and 2.
5. “Wai 262: Te Pae Tawhiti” (20 October 2022) Te Puni Kōkiri <www.tpk. govt.nz>.
6. Jayden Houghton “The New Zealand government’s response to the Wai 262 report: the first ten years” (2021) 25 The International Journal of Human Rights 870 at 881. Compare He Whakaaro Here Whakaumu Mō Aotearoa: The Report of Matike Mai Aotearoa – The Independent Working Group on Constitutional Transformation (January 2016) at 108; and He Puapua: Report of the Working Group on a Plan to Realise the UN Declaration on the Rights of Indigenous Peoples in Aotearoa/New Zealand (November 2019) at 11.

Government revised the work programme as a Levers Model, in which Māori and the Crown work as Treaty partners to advance 19 focus areas using system, domestic and international levers.⁷

This article examines the changes to the work programme using four archetypes (relationships between legal orders) and five strategies (which legal orders may adopt when engaging with one another) for Indigenous-state relations in a legal pluralist context. The article argues that the Government’s Overlapping Spheres Model had the potential to enable Māori and the Crown to reconcile on issues relating to the protection of mātauranga Māori and taonga because it emphasised tino rangatiratanga, te Tiriti o Waitangi and legal pluralist opportunities, but the new Levers Model returns to the language of partnership, which has already proven an ineffective and unpopular mode for responding to Wai 262, and complicates the response. The article urges the Government to proceed with caution to ensure that the Levers Model enables a Wai 262 response that respects tino rangatiratanga.

Part II discusses how the Overlapping Spheres Model was designed and implemented, emphasising how the Model facilitated meaningful dialogue between the Treaty partners and provided space for independent Māori decision-making. Part III describes the change to a Levers Model and the subsequent impact on existing workstreams. Part IV outlines a theoretical framework for understanding different approaches to legal pluralism in Indigenous-state relations. Part V critically analyses each Model against the archetypes and strategies of the theoretical framework. Part VI evaluates whether the Crown is moving in the right direction in pivoting from the Overlapping Spheres Model to the Levers Model. The article concludes.⁸

II Overlapping Spheres Model

In April 2019, the Government approved a plan for the Minister of Māori Development, the Hon Nanaia Mahuta, to develop a “whole-of-government” approach to respond to Wai 262.⁹ The approach would prepare the Crown for dialogue with Māori on substantive Wai 262 issues. Whilst the Tribunal’s recommendations were considered useful guidance,¹⁰ the response would not be constrained by them.¹¹ Dialogue would require a “genuine partnership approach underpinned by co‑ordinated and consistent government action”.¹²

7. Cabinet Paper “Te Tumu mō te Pae Tawhiti” (1 February 2022) CBC-22-MIN-0004 [“Cabinet Paper 2022”] at [29].
8. And the article concludes.
9. Summary of Wai 262 Work for [Senior Officials] (3 September 2019) at 1–2.
10. Wai 262 Kete Toru: International Indigenous Matters Hui Minutes (meeting minutes, 7 April 2019) at 2.
11. See Houghton, above n 6, at 872.
12. Summary, above n 9, at 2.

The Overlapping Spheres Model adopted a two-tiered structure. The first tier was a Ministerial Oversight Group (MOG), which provided strategic oversight.¹³ The second tier consisted of three Ministerial focus groups, each targeting a Kete (focus area) of issues: taonga works, te reo Māori (the Māori language) and mātauranga Māori; taonga species, the environment and mātauranga Māori; and international engagements. Each focus group included Ministers with strong portfolio links to the Kete. Given the breadth of issues engaged by Wai 262, many Ministers were engaged in the Model.¹⁴

A Government Engagement with Māori: Model Design

(a) Targeted engagement on process

In April 2019, Cabinet delegated Minister Mahuta authority to approve a targeted engagement approach with Māori.¹⁵ The purpose of this approach was two-fold:¹⁶ first, to seek feedback on the Overlapping Spheres Model (for example, what work should or should not be in each Kete); and, secondly, to inform the Crown on how they may support Māori to engage. This subsection reviews how the government engaged with Māori when designing the Model.

1 Feedback on the Crown’s Organisation Plan

Te Puni Kōkiri — the Ministry for Māori Development (TPK) was pushing an expectation that Māori be responsible for their own coordination when offering feedback to the Crown.¹⁷ It envisioned a role for Te Taumata Whakapūmau — the original Wai 262 claimants’ representative rōpū (group) — to support this Māori coordination effort. Feedback would inform a report on changes to the MOG and Kete structure.¹⁸ The report would consider the next steps to further the partnership between Māori and the Crown. A final work programme was anticipated to involve Government agencies, Māori and the public over several years.¹⁹

In July, Minister Mahuta privately met with Te Taumata Whakapūmau,²⁰

13. At 2.
14. Weekly update – Hon David Parker, Minister for the Environment: For the week starting 25 February 2019 (25 February 2019) at 11.
15. Cabinet Minute “Developing a Whole-of-Government Strategy for WAI 262” (8 April 2019) CAB-19-MIN-0138.01 at [12].
16. Kete Tahi – Wai 262: Taonga works and Mātauranga Māori (workshop notes,

13 June 2019) at 4.

17. Update – Wai 262 internal ref group (undated) at 15.
18. Summary, above n 9, at 1.
19. Questions and answers about the Government’s intentions to open dialogue on Wai 262 (undated) at 4.
20. At 4.

enabling constructive dialogue without media pressure.²¹ In August, Minister Mahuta met for discussions with the Iwi Chairs Forum. Subsequently, inter-agency hui with Māori ran through September and October, including discussions with Māori academics, Māori technical experts, and sectoral Māori reference groups established by Government agencies.²² Furthermore, TPK coordinated discussions with lead Māori organisations,²³ including the Iwi Chairs Forum, Te Kaunihera Māori o Aotearoa (New Zealand Māori Council) and the Federation of Māori Authorities,²⁴ as well as other Māori groups which expressed an interest in participating.²⁵ Minister Mahuta committed to “[being] upfront about what we’re doing” and “keep[ing] everybody informed about the process and how they can participate if they wish to do so”.²⁶

Many Crown agencies have relationship agreements with iwi, hapū and whānau.²⁷ Over months of hui, the Government reiterated that the Crown’s duty to honour its existing commitments to Māori would endure throughout the Wai 262 response.²⁸ Agencies would need to understand how the Wai 262 response integrated with existing arrangements.²⁹

2 Crown Support of Māori Engagement

The Government acknowledged that given the stop-start Wai 262 response, it expected Māori distrust.³⁰ It would consider how the Crown could develop a genuine relationship with Māori.³¹ The Māori-Crown relationship had long focused on settlement and redress. However, in the Wai 262 report, the Tribunal called for the Māori-Crown relationship

21. Hei Whakatau: Briefing – Wai 262: Ministerial Oversight Group briefing on Targeted Engagement (20 August 2019) at [20].
22. Summary, above n 9, at 1.
23. MOG Briefing, above n 21, at [20].
24. “Attachment 1: National Māori organisations that will be contacted as part of targeted engagement” in MOG Briefing, above n 21, at 12.
25. MOG Briefing, above n 21, at [27].
26. “Backpocket Q&A for Iwi Leaders Forum” in For your review: revised Ministerial Preface, Wai 262 webcontent and “backpocket” Q&A (23 August 2019), Attachment 3.
27. See Email from Nadia Ward (Te Puni Kōkiri) to Rewi Henderson (Te Arawhiti) and others regarding WAI 262 – Te Pae Tawhiti – Final hui for 2019 10th December at 10:30 (12 December 2019).
28. Email from Roland Sapsford (Te Puni Kōkiri) to Tia Warbrick (Te Arawhiti) and others regarding WAI 262 – Te Pae Tawhiti – Final hui for 2019 10th December at 10:30 (10 December 2019). Te Arawhiti – the Office for Maori Crown Relations added that existing commitments to iwi would not change: Hui Kete Tuatahi – Wai 262: Te Pae Tawhiti (meeting minutes, 14 November 2019) at 32. TPK and Te Arawhiti had also communicated with all Post-Settlement Governance Entities (PSGEs) to ensure they were aware of the scope of the targeted engagement: MOG Briefing, above n 21, at [26(a)].
29. Sapsford, above n 28.
30. MOG Briefing, above n 21, at [29]. See Houghton, above n 6, at 882–883.
31. Kete Tahi (13 June 2019), above n 16, at 6.

to move beyond grievance to a new era based on partnership.³² The Tribunal found that existing laws fell short of partnership, allowing others to control aspects of Māori culture. Targeted engagement would allow the Crown to demonstrate its commitment to a transparent, good faith approach.³³

TPK cautioned that agencies required a common understanding of what good engagement looked like and meant for different Māori groups.³⁴ To balance the tension between Māori and Western conceptions of ownership, TPK urged agencies to understand the role of Māori as kaitiaki of mātauranga Māori and taonga.³⁵ TPK also encouraged agencies to be proactive, rather than to rely on TPK to dictate the process, and to consider opportunities for co-design and co-management.³⁶ The MOG expected that Māori interest would likely decrease once Māori groups understood that the targeted engagement focused on the design of a procedural framework rather than the resolution of substantive issues.³⁷

It was also recognised that agencies should coordinate on Wai 262 initiatives, including sharing information with each other,³⁸ to reduce engagement fatigue for Māori.³⁹ TPK expressed that each agency would need to ensure “the right people [were] informed and at the table as needed”.⁴⁰ Māori time was to be valued and feedback put to the most effective use possible. Agencies would need to understand how to develop partnerships that could endure beyond the government of the day.

The Government acknowledged that written submissions were not the preferred method of engagement for Māori.⁴¹ Thus, engagement was to be primarily through oral discussion, and informed by TPK’s knowledge about and experience engaging with Māori.⁴² TPK would consider which iwi and hapū might want to be engaged separately to maintain their rangatiratanga.⁴³

32. “Te Tiriti o Waitangi/the Treaty of Waitangi and the role of Māori in the resource management system” (Working Paper 5) at [55] in RM review 6 – draft working paper on te Tiriti o Waitangi/the Treaty of Waitangi and the role of Māori in the resource management system (Ministry for the Environment, 20 November 2019), Appendix 2.
33. MOG Briefing, above n 21, at [29].
34. Kete Tahi (13 June 2019), above n 16, at 6.
35. At 6.
36. At 4.
37. MOG Briefing, above n 21, at [27].
38. Kete Tahi (13 June 2019), above n 16, at 5.
39. Hui Kete Toru – Wai 262: International Indigenous Matters (meeting minutes, 7 April 2019) at 2.
40. At 2.
41. Ministry of Business, Innovation and Employment Briefing: Engagement with Māori on intellectual property work streams (1 February 2019) at [10].
42. WAI 262: Ministerial Oversight Group briefing on Targeted Engagement (20 August 2019) at [28].
43. Ward, above n 27.

(a) Establishment of a working group

In early December 2019, officials from TPK and Te Arawhiti — the Office for Māori Crown Relations (Te Arawhiti) met to discuss the Crown’s engagement with Māori.⁴⁴ The Overlapping Spheres Model was formalised by early 2020.⁴⁵

For the next phase, TPK would lead the establishment of a small Māori working group.⁴⁶ The group’s initial focus would be to identify early initiatives towards a robust, ongoing Wai 262 work programme.⁴⁷ Agencies agreed that the Government must be available to facilitate Māori-to-Māori engagement.⁴⁸ On 5 March 2020, TPK hosted a Wai 262 “101” workshop — the first of a series to upskill agencies on Wai

262.⁴⁹ Te Arawhiti hoped that upskilling would lead to more effective and meaningful engagement with Māori. The Māori working group’s early initiatives were expected to fold into a complete Wai 262 work programme by 2022.⁵⁰

Separately, Te Taumata Whakapūmau developed an engagement plan and Te Arawhiti advised that agencies should be positioned to engage with it.⁵¹

(b) Budgetary support for Māori engagement

In late-2019, the Treasury reviewed TPK’s budget bid for Wai 262.⁵² The Treasury deemed the initial bid to be very high-level and lacking specificity. It asked, for example: “what does a strong Māori Crown partnership ... actually mean in practice?” TPK hoped that the funding would result in a mandated representative group in the Māori sphere that the Crown could work with as the “Māori Treaty partner” on Wai 262 issues.⁵³ TPK acknowledged that the high-level framing of its initiatives did not lend itself to a specific intervention logic.⁵⁴ However, it argued

44. Email from “Mailbox – Wai 262 – Te Pae Tawhiti” to Aidan Burch (MBIE) and others regarding WAI 262 – Te Pae Tawhiti – Final hui for 2019 10th December at 10:30 (9 December 2019).
45. See Te Puni Kōkiri Wai 262 – Te Pae Tawhiti: Targeted Engagement Report –Preliminary Proposals for Crown Organisation (2020).
46. Email from Anaru Rewi (Te Puni Kōkiri) to Jemma Jackson (Treasury) regarding Wai 262 Budget bid feedback (10 January 2020).
47. Rewi, above n 46.
48. See Hui Kete Tuatahi (14 November 2019), above n 28, at 31.
49. Email from Nadia Ward (Te Puni Kōkiri) to Tia Warbrick (Te Arawhiti) and Rewi Henderson (Te Arawhiti) regarding Workshop 2 on Wai 262 and relationship accords (18 March 2020).
50. Rewi, above n 46.
51. See Hui Kete Tuatahi (14 November 2019), above n 28, at 31.
52. Email from Hanna Alder Ovenden (Treasury) to Nadia Ward (Te Puni Kōkiri) and Anaru Rewi (Te Puni Kōkiri) regarding Wai 262 Budget bid feedback (20 December 2019).
53. Rewi, above n 46.
54. Rewi, above n 46.

that additional funding to support Māori-to-Māori engagement was necessary. The bid was complex, requiring some baseline and multi-year contingency funding.

The Treasury noted that the strategy required heavy, upfront investment in time and money. It was also unsure why TPK required additional funding to support Māori-to-Māori engagement beyond existing baselines.⁵⁵ In this respect, the Treasury approached TPK like it would other agencies — insisting on clear oversight rather than empowering Māori decision-making. In doing so, it subverted Te Pae Tawhiti, which was intended to retool existing processes and recognise Māori autonomy.

The Treasury requested that TPK submit a more streamlined bid,⁵⁶ which it did. In May 2020, the Government announced $6,494,000 for 2020–2022 to “[provide] funding to establish and support a joint work programme between Māori and the Crown” and “enable Māori and the Crown to work together to address issues raised through the Wai 262 claim and the [Tribunal’s] report”, with the aim of “delivering enduring economic, social, environmental and cultural benefits for Aotearoa New Zealand”.⁵⁷

(a) Government Engagement with Māori: Model Implementation

(a) Kete Tuatahi: Taonga works, te reo Māori and mātauranga Māori

For Kete Tuatahi, the Government envisaged opportunities for Māori-Crown collaborative work to determine: how decisions affecting mātauranga Māori and taonga works should be made and by whom; how the Crown should manage mātauranga Māori and taonga works it holds; how to better enable kaitiaki to exercise kaitiakitanga with respect to mātauranga Māori and taonga works; and whether a new legal framework should be developed to protect mātauranga Māori and taonga works.⁵⁸

Hīkina Whakatutuki — the Ministry of Business, Innovation & Employment (MBIE) noted that a fit-for-purpose domestic intellectual property regime must balance innovation with the interests of kaitiaki of mātauranga Māori and taonga.⁵⁹ Following consultative feedback, MBIE recognised that it required wider relevant expertise, and committed to

55. Ovenden, above n 52.
56. Ovenden, above n 52.
57. See Wellbeing Budget 2020: Rebuilding Together (Treasury, 14 May 2020) at

77.

58. Te Puni Kōkiri Wai 262 – Te Pae Tawhiti: The role of the Crown and Māori in making decisions about taonga and mātauranga Māori – Preliminary proposals for Crown organisation (August 2019) [Preliminary Proposals] at 20.
59. MBIE 80771773 – Week ending 31 May 2019 (undated) at [23].

working with pūkenga (experts) and practitioners in te ao Māori (the Māori world) across workstreams.⁶⁰

In August 2019, MBIE led a hui on Wai 262. Māori participants raised the need to think “outside of the square, but inside [the Māori] paradigm”.⁶¹ MBIE had ordinarily taken a narrow intellectual property perspective. Participants urged a more holistic approach to protect mātauranga Māori and taonga.⁶² Suggestions included to remove all taonga from the public domain and to prevent non-Māori from holding copyright over works with Māori elements. Participants recognised that legislation would not be a silver bullet, given that it would be susceptible to amendment or repeal by the legislature of the day.

Participants contended that it should be for Māori to design the protective regime: “the vision should come from Māori, and then be implemented by the Crown”.⁶³ MBIE echoed this sentiment, stating that the Crown should not aim to lead but to enable, including by providing resources for Māori to develop solutions amongst ourselves.⁶⁴

(b) Kete Tuarua: Taonga species, the environment and mātauranga Māori

In Kete Tuarua, the Government envisaged opportunities for Māori-Crown collaborative work to determine: how mātauranga Māori and taonga species should be protected; how to better enable kaitiaki to exercise kaitiakitanga with respect to mātauranga Māori and taonga species; and who should make decisions affecting mātauranga Māori and taonga species, and how.⁶⁵ Te Papa Atawhai — the Department of Conservation (DOC) took the lead on this work.

In January 2018, DOC recognised that several of the Tribunal’s recommendations pertained directly to its work.⁶⁶ DOC acknowledged the “aspirations of iwi and Māori for playing a greater role in managing biodiversity on both public and private land” and committed to working closely with its Treaty partner.⁶⁷ It had earlier established Ngā Aitanga ā Nuku, a process to enable decision-making by iwi, hapū and whānau

60. Ministry of Business, Innovation and Employment Briefing: Summary of submissions and update Wai 262-related intellectual property work streams (15 August 2019) at [21(a)].
61. “Annex 4 – Notes from taonga works and copyright kōrero – 26 March 2019” in Briefing: Summary of submissions and update Wai 262-related intellectual property work streams (15 August 2019) at 3.
62. At 4.
63. At 5.
64. At 5.
65. Preliminary Proposals, above n 58, at 21.
66. Departmental memo from Peter Brunt (Director – Policy, Department of Conservation) to Eugenie Sage (Minister of Conservation) regarding Advice for Iwi Chairs Forum hui at Waitangi – 1 February 2019 (23 January 2018) at 4.
67. Brunt, above n 66.

with respect to access to cultural materials,⁶⁸ but progress in negotiating arrangements was slow.⁶⁹

DOC separately undertook a review of the New Zealand Biodiversity Strategy (NZBS) for restoring biological species and ensuring their survival.⁷⁰ By July 2019, a Te Ao Māori Reference Group was established to “support the whole-of-government response to Wai 262”, “ensure coordinated participation in cross-agency kete discussions, and ongoing consideration of the Wai 262 report and recommendations in [DOC’s] work” and “[provide] a conduit back into DOC to raise the profile of the whole-of-government response”.⁷¹ The project aspired to reconcile te ao Māori and te ao Pākehā (the Western world) approaches to conservation, and publish Te Mana o te Taiao — a strategic plan to improve biodiversity, and implement measurable targets across Aotearoa.⁷²

(c) Kete Tuatoru: International engagements

In Kete Tuatoru, the Government envisaged opportunities for Māori-Crown collaborative work to determine: how the Government should work with Māori to identify Māori interests when negotiating international instruments and participating in international forums; how agencies should engage with Māori when representing New Zealand; and how Māori should be represented in international forums.⁷³ For two decades, Te Manatū Aorere — the Ministry of Foreign Affairs and Trade (MFAT) has used the 2001 Strategy for Engagement with Māori on International Treaties to guide its engagement with Māori in negotiating treaties.⁷⁴ TPK acknowledged the need to explore new structures

68. Ngā Aitanga ā Nuku: Cultural Resources – Decision making by iwi/hapū/whānau for cultural materials (Department of Conservation, 2016).
69. One and a half years later, only one arrangement had been completed (with Waikato Tainui) and conversations with 20 interested PSGEs and iwi, hapū and whānau were ongoing. See Memorandum from Tui Arona to Michelle Hippolite and others regarding Wai 262 – DOC’s progress to date (17 October 2019) at 3.
70. Brunt, above n 66, at 1–2.
71. Departmental memo from Andy Hill (Acting Policy Director) to Chairpersons and Conservations Boards regarding Wai 262 whole-of-government approach (24 October 2019) at 3. See Internal media advisory from Leigh-Anne Wiig (Senior Media Advisor) to SLT and others (5 July 2019). See also Brunt, above n 66, at 4.
72. See generally Te Mana o Te Taiao: Aotearoa New Zealand Biodiversity Strategy 2020 (Department of Conservation, 2020).
73. Preliminary Proposals, above n 58, at 21. See Hui Kete Tuatoru – Wai 262: Te Pai Tawhiti (meeting minutes, 18 September 2019) at 12–13.
74. Hui Kete Tuatoru – Wai 262: Te Pai Tawhiti (meeting minutes, 5 September 2019) at 10. The government continues to adhere to the strategy. See Jane Kelsey “Waitangi Tribunal Forces NZ Rethink on Digital Trade Rules”

(November 2022) Australian and New Zealand Society of International Law <www.anzsilperspective.com>.

and processes to practise Māori-Crown partnership in international engagements.⁷⁵

In September 2019, MFAT signed a memorandum of understanding with Te Taumata, a group of recognised leaders in Māoridom, chosen by Māori to engage with MFAT on trade policy and related matters.⁷⁶ Te Taumata was to assist MFAT in identifying and understanding Māori interests in trade negotiations, including specific Wai 262 trade linkages, and to inform New Zealand’s international position when such interests were affected.⁷⁷ The memorandum outlined that this may include discussions with MFAT on overall trade strategy, addressing the consistent application of the 2001 Strategy in the trade context, facilitating engagement with other appropriate parties, and assisting MFAT to increase its internal competency with mātauranga Māori.⁷⁸

Concurrently, MBIE evinced a keenness to review its approach to Māori participation at international negotiations, including the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), in consultation with Māori.⁷⁹ The Government had historically funded independent Māori representatives on an ad hoc basis. MBIE recognised that other countries had involved Indigenous community representatives in their national delegations⁸⁰ and acknowledged that it needed to improve its processes for identifying who to liaise with in the Māori sphere.⁸¹

III Levers Model

In February 2022, Minister Mahuta proposed changes to Te Pae Tawhiti in a Cabinet Paper titled “Te Tumu mō te Pae Tawhiti” (Cabinet Paper 2022).⁸² Cabinet Paper 2022 sought to update the Crown’s approach to Te Pae Tawhiti, as a part of the Labour Party’s Māori Manifesto.⁸³

Cabinet Paper 2022 replaced the Overlapping Spheres Model with the Levers Model, in which Māori and the Crown work as Treaty partners to advance 19 focus areas using system, domestic and international levers. First, the system levers relate to the structures, relationships, frameworks

75. Hui Kete Tuatoru – Wai 262: Te Pai Tawhiti (meeting minutes, 1 October 2019) at 16.
76. “Memorandum of Understanding Between Te Taumata and The Ministry of Foreign Affairs and Trade (MFAT)” (24 September 2019) at 1. Te Taumata and Te Taumata Whakapūmau are distinct groups.
77. At 1.
78. At 1–2.
79. Ministry of Business, Innovation and Employment Briefing: World Intellectual Property Organization Intergovernmental Committee on Traditional Knowledge: Cabinet negotiating mandate (22 May 2019) at 8–9.
80. Hui Kete Tuatoru (5 September 2019), above n 74, at 10.
81. Hui Kete Tuatoru (18 September 2019), above n 73, at 13.
82. “Cabinet Paper 2022”, above n 7, at [1].
83. At [3]. See Māori Manifesto: Labour 2020 (Labour Party, 2020).

and resources for implementing changes.⁸⁴ Secondly, the domestic levers seek to apply a Te Pae Tawhiti approach to systems involving mātauranga Māori and taonga. Finally, the international levers seek to enhance Māori engagement in international matters — for example, by involving Māori in international forums and Indigenous collaboration arrangements.⁸⁵

The 19 focus areas are divided into 10 Te Pae Tawhiti mahi and nine Te Pae Tawhiti-aligned mahi.⁸⁶ Te Pae Tawhiti mahi are slated as large-scale undertakings requiring cross-agency collaboration to support Ministers’ priorities. For the system levers, these are: a sui generis intellectual property policy and legal system for mātauranga Māori and other taonga; a research, science and innovation strengthened approach to mātauranga Māori; and an evaluation framework to measure outcomes related to mātauranga Māori. For the domestic levers, these are: developing a bioprospecting regime; exploring biodiversity incentives to support Te Mana o te Taiao;⁸⁷ protecting and promoting key mātauranga collections; continuing to progress kaupapa to revitalise te reo Māori; and reviewing the Wildlife Act 1953, and partially reviewing the general policies for National Parks and conservation.⁸⁸ For the international levers, these are: Māori engagement in international instruments and fora; and Pōkai Ao – Indigenous collaboration arrangements.⁸⁹

In contrast, Te Pae Tawhiti-aligned mahi are smaller in scope and intended to enhance work in the broader focus areas.⁹⁰ For the system levers, these are: Māori data governance; and the Vision Mātauranga policy. For the domestic levers, these are: the National Policy Statement for Freshwater Management;⁹¹ the Haka Ka Mate Attribution Act 2014

84. “Cabinet Paper 2022”, above n 7, at [29].
85. At [29].
86. At [29]. The Cabinet Paper advertises 11 Te Pae Tawhiti mahi but repeatedly lists only 10. See at 9–10, 11 and 12. It consequently advertises 20 focus areas when it lists only 19.
87. Te Mana o Te Taiao, above n 72.
88. See General Policy for National Parks (Department of Conservation, 2019);

and Conservation General Policy (Department of Conservation, 2019).

89. See, for example, Australia and Aotearoa-New Zealand Indigenous Collaboration Arrangement (signed in Sydney, Australia on 28 February 2020).
90. “Cabinet Paper 2022”, above n 7, at [29].
91. See National Policy Statement for Freshwater Management 2020 (Ministry for the Environment, February 2023).

review;⁹² the Mātauranga Māori Te Awe Kōtuku programme;⁹³ the Plant Variety Rights legislation;⁹⁴ the aquaculture strategy and plan;⁹⁵ key actions in Te Mana o te Taiao;⁹⁶ and the Resource Management Act reform.⁹⁷ There are no Te Pae Tawhiti-aligned mahi for the international levers.

The Levers Model is intended to “more clearly give effect to the aspirations of the Wai 262 claims”.⁹⁸ TPK would continue to direct Te Pae Tawhiti and coordinate with key agencies “as necessary”.⁹⁹ TPK would also establish Te Kahu Aronui — an expert technicians group — to assist in developing and testing resulting policies.¹⁰⁰

1. Government Engagement with Māori: Model Design

(a) Recalibration

In April 2021, the Productivity Commission released a report on the productivity of New Zealand’s “frontier firms”.¹⁰¹ The Commission found

92. See Haka Ka Mate Attribution Act 2014, s 12.
93. The programme provides $24.5 million over three years to fund initiatives to support iwi, hapū, whānau and Māori communities to safeguard at-risk mātauranga. The initiatives include: the Mātauranga Māori Marae Ora Fund; community digitisation wānanga of at-risk audio-visual taonga; revitalising Māori-built heritage conservation mātauranga; revitalising mātauranga Māori in ancestral landscapes (wāhi tapu and wāhi tupuna); the taonga conservation wānanga programme; the wānanga series on endangered mātauranga Māori practices; virtual capture, access and tour of taonga; the recording and sharing of Taikura Kapa Haka regional performances; Toi Ake – Mātauranga Māori Te Awe Kōtuku Fund; the protection and retention of critically endangered artforms (Tārai Waka); the protection and retention of critically endangered artforms (Taonga Pūoro); the cultural agency internship programme; kapa haka (traditional Māori dance) regional wānanga; a pilot to apply Traditional Knowledge (TK) Labels to national documentary heritage collections; the preservation and digitisation of the Tangata Whenua film series; protecting, nurturing and growing mātauranga toi (artform and arts practice knowledge) in rohe; the continuation of Te Tai Whakaea Treaty Settlements Stories programme; Te Tairāwhiti Arts Festival; and Toi Ngāpuhi (an initiative to protect and revitalise Ngāpuhi cultural heritage, expressions and identity). “Mātauranga Māori Te Awe Kōtuku programme” (11 May 2023) Ministry for Culture & Heritage <https://mch.govt.nz>.
94. See Plant Variety Rights Act 2022.
95. See The New Zealand Government Aquaculture Strategy (New Zealand Government, 2019).
96. Te Mana o Te Taiao, above n 72.
97. See the Natural and Built Environment Act 2023; and the Spatial Planning Act 2023.
98. “Cabinet Paper 2022”, above n 7, at [27].
99. At [30].
100. At [30].
101. New Zealand firms: Reaching for the frontier – Final report (New Zealand Productivity Commission, April 2021).

that mātauranga Māori and Māori brand distinctiveness were “significant assets”¹⁰² requiring legal protection to secure brand competitiveness in the international market. It also found that the Government’s response to key recommendations in the Tribunal’s report had been slow.¹⁰³ The Commission recommended that the Government – led by TPK – take a whole-of-government approach to address the recommendations, and prioritise and accelerate action to protect mātauranga Māori.¹⁰⁴

In July 2021, Te Taumata Whakapūmau hosted the first claimant-led Wai 262 symposium.¹⁰⁵ The symposium aimed to share the vision of the original claimants, discuss the journey forward for Wai 262, and invite Māori technicians and practitioners to support the group. Minister Mahuta attended. In her speech, Mahuta explained that Te Pae Tawhiti emerged in response to the need for the Government to organise itself to effectively respond to the Tribunal’s report, and that forums like the symposium provided helpful guidance for the work programmes within her portfolios.¹⁰⁶ Referring to her MFAT portfolio, Mahuta identified that Māori exporters faced challenges protecting their taonga internationally, emphasising that protecting taonga like Mānuka honey (so that Māori could use their taonga to create economic opportunities) would be an important next step.¹⁰⁷ Dr Karaitiana Taiuru also attended and spoke, suggesting that the logical way forward for such an expansive claim would be to review the existing workstreams so there could be multiple streams of action.¹⁰⁸

Echoing the Productivity Commission’s findings and Minister Mahuta’s address at the symposium, Cabinet Paper 2022 frames Te Pae Tawhiti update as seeking to “create sustainable economic opportunities based on our unique place in the world, galvanise economic activity, enhance our cultural identity and protect and restore the wellbeing of our environment”.¹⁰⁹

In 2020, the world was sidelined by the COVID-19 pandemic, which generally disrupted policy development and implementation.¹¹⁰ Over about two years, New Zealand phased in and out of lockdowns, with

102. At 8.
103. At 65.
104. At 65. See also at 181.
105. “Join us at our inaugural WAI 262 online symposium” (14 July 2021) Facebook <www.facebook.com>.
106. “Wai 262 Symposium” (19 July 2021) Facebook <www.facebook.com>.
107. “Wai 262 Symposium”, above n 106.
108. “Unwieldy WAI 262 claim needs new structure for progress” (19 July 2021)

<www.waateanews.com>. Compare Houghton, above n 6, at 872–874.

109. “Cabinet Paper 2022”, above n 7, at [1].
110. See generally “The territorial impact of COVID-19: Managing the crisis across levels of government” (Organisation for Economic Co-operation and Development, 2020).

the final lockdown lifting in December 2021.¹¹¹ Cabinet Paper 2022 presents the government’s recovery response, and its concomitant efforts to generate economic opportunities based on New Zealand’s unique branding, as an opportunity to refocus Te Pae Tawhiti.¹¹²

(b) Key changes

1 Budget support

In May 2022, the Government announced $17,070,000 for 2022–2024 and $10,590,000 for 2024–2026 to “invest in the foundations necessary to protect and enable appropriate use of mātauranga Māori and other taonga in Aotearoa”.¹¹³ The Budget signalled that the investment had “the potential to fuel innovation, strengthen national identity, and enhance our international reputation” and would “deliver direct benefits to Māori through investing in what is uniquely Aotearoa”.¹¹⁴ It also explicitly noted that it would fund Māori engagement led by Te Taumata Whakapūmau, expert technical work by Te Kahu Aronui, and Crown cross-agency policy work on Te Pae Tawhiti.¹¹⁵

The 2022 Budget brought welcome changes from the Treasury from a Māori perspective. First, funding was increased from $6.494 million (between 2020 and 2022) to $27.66 million (between 2022 and 2026). Secondly, the funding was more clearly focused on Māori-led engagement and policy development. Thirdly, it included funding for Māori-to-Māori engagement, led by Te Taumata Whakapūmau.¹¹⁶ In these ways, the Treasury has demonstrated an increased willingness to engage with Māori and empower independent decision-making authority in the Māori sphere.

2 Māori-Crown partnership

Cabinet Paper 2022 explains that a Māori-Crown partnership fundamentally underpins the work programme. Practically, the Māori-Crown partnership is intended to “drive, shape and inform” the levers.¹¹⁷ However, the Paper abandons the central notion in the Overlapping Spheres Model that Te Pae Tawhiti will facilitate the exercise of tino rangatiratanga.¹¹⁸ Indeed, it does not mention tino rangatiratanga at all. Thus, it rejects the texts of the Treaty, which Māori signed (specifically

111. “History of the COVID-19 Alert System” (22 June 2019) Unite against COVID-19 <https://covid19.govt.nz>.
112. “Cabinet Paper 2022”, above n 7, at [5].
113. Wellbeing Budget 2022: A Secure Future (Treasury, 19 May 2022) at 135.
114. At 135.
115. At 135.
116. See Nanaia Mahuta “New funding for protecting and enabling mātauranga Māori” (press release, 27 May 2022).
117. “Cabinet Paper 2022”, above n 7, at [29].
118. “Appendix A – Diagram on proposed Government Organisational Structure” in Preliminary Proposals, above n 58, at 28.

the Māori language translation of the English version),¹¹⁹ in favour of the much-diluted principles of the Treaty, which have been developed, not by Māori, but by the courts and Tribunal.¹²⁰

Neither does Cabinet Paper 2022 mention the MOG, which was to determine the government’s approach to Māori-Crown relationships and “prepare for conversations at the rangatira level”.¹²¹ The MOG signalled that the Wai 262 response was a whole-of-government commitment.¹²² The unremarked future of the MOG is remarkable given the Paper purports to reaffirm that a whole-of-government approach to Te Pae Tawhiti is a government priority.¹²³

3 Kete structure

The Levers Model largely reworks the three Kete structure.¹²⁴ The workstreams are more targeted — for example, the “potential work programmes” identified in the Overlapping Spheres Model are now “focus areas”.¹²⁵ Whereas the Overlapping Spheres Model separated the taonga works and taonga species workstreams in Kete Tuatahi and Kete Tuarua, respectively, the Levers Model combines them for a response using the domestic levers.¹²⁶ In doing so, the Levers Model’s “pragmatic focus” considers the impact of new policies as they arise in relevant government portfolios, and addresses Wai 262-related issues in individual reform programmes.¹²⁷

4 Outcomes focus

The Levers Model also prioritises pragmatism and coherence. Cabinet Paper 2022 contends that targeting the 19 focus areas will help to “bring about the greatest benefit to Māori and Aotearoa New Zealand”.¹²⁸ It also emphasises the potential for Māori businesses with mātauranga Māori values to deliver specialised products, which could present as

119. See Ned Fletcher “Drafting the Treaty” in The English Text of the Treaty of Waitangi (Bridget Williams Books, Wellington, 2022) 307 at 313; and Ned Fletcher “Signing the Treaty” in The English Text of the Treaty of Waitangi (Bridget Williams Books, Wellington, 2022) 326 at 326.
120. See “The principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal” in Te Puni Kōkiri He Tirohanga ō Kawa ki te Tiriti o Waitangi: A Guide to the Principles of the Treaty of Waitangi as expressed by the Courts and the Waitangi Tribunal (Wellington, 2001) 73.
121. Preliminary Proposals, above n 58, at [40]–[41].
122. At [40].
123. See generally Jayden Houghton “Wai 262 Response: A Whole-of-Government Approach?” (paper presented to seminar on Mātauranga Māori and Taonga, University of Auckland, 25 July 2023).
124. Summary, above n 9, at 5.
125. “Cabinet Paper 2022”, above n 7, at [29].
126. At [29].
127. At [14].
128. At [27].

significant assets in overseas markets.¹²⁹ Further, it describes the benefits of protecting mātauranga Māori in economic terms, explaining that the updated Te Pae Tawhiti response is predicted to deliver up to $340m each year.¹³⁰

B Government Engagement with Māori: Model Implementation

(a) System levers: examples

Te Taumata Whakapūmau has taken the lead in the development of a sui generis intellectual property regime, which is one of three Te Pae Tawhiti mahi intended to use the system levers.¹³¹ In October 2022, it announced a nationwide engagement process (Kanohi Ora) to collect whakaaro (thoughts) on how such a regime could protect and affirm the rights of kaitiaki at whānau, hapū and iwi levels.¹³² In July 2023, Te Taumata Whakapūmau and Te Kahu Aronui launched Tiaki Taonga, a consultation process for the development of a substantive framework to protect, preserve and promote mātauranga Māori and taonga.¹³³ Tiaki Taonga calls for all Māori to contribute to wānanga (seminars) to ensure that the framework will be informed by the relevant and appropriate tikanga.¹³⁴

(b) Domestic levers: examples

The exploration of biodiversity incentives to support Te Mana o te Taiao is one of five Te Pae Tawhiti mahi intended to use the domestic levers.¹³⁵ Te Mana o te Taiao prioritises “increasing the integration of te ao Māori and elevation of mātauranga Māori in biodiversity decision-making, management, and funding”¹³⁶ and aims to “[uphold] Māori cultural and intellectual property rights and data sovereignty regarding indigenous biodiversity”.¹³⁷ In July 2023, Manatū Mō Te Taiao — the Ministry for the Environment released the National Policy Statement for Indigenous Biodiversity to advance the mahi.¹³⁸ The Statement requires that every local authority involve tangata whenua, where they wish to be involved,

129 At [24].

130. At [25]. The Government’s pragmatic intentions are also reflected in the Model’s proposed economic, cultural, and environmental outcomes. Compare at [29]; and Preliminary Proposals, above n 58, at 20–21.
131. “Te Tumu mō te Pae Tawhiti” (2022) Te Puni Kōkiri <www.tpk.govt.nz>.
132. Kia Whakapūmau “Three Decades of Wai 262 - the Claim Uniting Māori through Intellectual Rights and Protection of Taonga” (press release, 10 October 2022).
133. “Te Whakarewatanga o Tiaki Taonga” (1 July 2023) Facebook <www. facebook.com>.
134. “Kahu Aronui Booklet” (1 July 2023) Tiaki Taonga <www.tiakitaonga. com>.
135. “Te Tumu mō te Pae Tawhiti”, above n 131.
136. Te Mana o Te Taiao, above n 72, at 8.
137. At 46.
138. National Policy Statement for Indigenous Biodiversity (Ministry for the Environment, 2023).

as partners in the management of Indigenous biodiversity.¹³⁹ It also requires that engagement with tangata whenua is timely, meaningful and consistent with tikanga, and has regard to whānau, hapū and iwi decision-making structures.¹⁴⁰

(c) International levers: examples

In May 2023, the Cabinet Economic Development Committee met to revise the negotiating mandate for the development of international legal instruments protecting traditional knowledge and traditional cultural expressions, in anticipation of the next IGC meeting.¹⁴¹ The Committee noted the need to protect the misappropriation of mātauranga Māori globally, and to enable Māori to derive economic benefit from using mātauranga Māori to create specialised products which are competitive in the global market.¹⁴² Cabinet Paper 2022 is silent on whether Māori will be supported to represent their interests at the IGC.¹⁴³

Finally, in August 2021, MFAT commissioned an internal report to assess whether the Ministry had the right structures and systems in place to deliver its objectives for Māori policy, and whether the Ministry’s mātauranga Māori capabilities were in line with the expectations of relevant Ministers, the Public Service Act 2020, and the Ministry’s senior leadership team and staff.¹⁴⁴ Whilst the report acknowledged the Ministry had made progress towards developing its mātauranga Māori capabilities, it highlighted that there were still significant gaps.¹⁴⁵ The report presented 24 recommendations to increase mātauranga Māori capabilities across the Ministry.¹⁴⁶ In July 2022, a progress report highlighted that the Deputy Chief Executive had initiated engagement to create a Māori Partnership Forum, and that MFAT intended to define an authentic, enduring and sustainable partnership model with Māori.¹⁴⁷

139 At 15.

140 At 16.

141. Office of Associate Minister for Māori Affairs and Office of Minister of Commerce and Consumer Affairs “Revised Negotiating Mandate for the Development of International Legal Instruments Protecting Traditional Knowledge and Cultural Expressions at the World Intellectual Property Organization” (Cabinet Paper, 25 May 2023).
142. At 2.
143. See at 7. The revised negotiating mandate is not publicly available as it has international implications.
144. “Engagement with Māori” Ministry of Foreign Affairs and Trade <www. mfat.govt.nz>.
145. “Mātauranga Māori at MFAT Report to Senior Leadership Team” (11 August 2021) Ministry of Foreign Affairs and Trade <www.mfat.govt. nz> at [9].
146. Appendix 1.
147. “Progress Report Mātauranga Māori Programme” (19 July 2022) Ministry of Foreign Affairs and Trade <mfat.govt.nz> at [14].

IV Indigenous Lens for Legal Pluralism

Val Napoleon applies Geoffrey Swenson’s framework for legal pluralism to Indigenous-state relations. Although Swenson’s framework is drawn originally from the context of post-conflict countries, Napoleon’s Indigenous lens assists in characterising specific aspects of the Government’s response and identifying where a paradigm shift may be required. The framework identifies four archetypes for “the fluid relationship between state and nonstate” actors and five strategies used between actors to establish pluralist relationships.¹⁴⁸

A Legal Pluralism Archetypes

Swenson’s framework identifies four archetypes that describe a spectrum of relationships between legal orders: combative, competitive, cooperative, and complementary. These archetypes are indiscrete and can be used simultaneously to describe different aspects of Indigenous-state relations.¹⁴⁹

Combative relationships involve “overtly hostile” interactions between legal orders.¹⁵⁰ The archetype is the antithesis of legal pluralism, as legal orders “actively seek to destroy each other” and render each other invalid.¹⁵¹ Colonialism can be categorised historically within the combative archetype, where “institutional, political, and legal checks on authorities in [Indigenous] legal orders were intentionally suppressed or destroyed”.¹⁵² The archetype is wholly undesirable for Indigenous-state relations.

Competitive relationships involve a state of tension between legal orders. The state remains an “unchallenged” legal authority and will typically attempt to assert itself in environments that were otherwise entirely or partially inimical to state control.¹⁵³ As the state gains “legitimacy, authority, and capacity”, Indigenous actors will find partnership increasingly appealing as the cost of resistance rises.¹⁵⁴ Unlike the combative archetype, however, Swenson suggests a level of mutual respect exists between legal orders.¹⁵⁵ Non-state orders consequently retain a “right to exist” outside the state’s penumbra of authority.¹⁵⁶ The archetype is unlikely to indicate reconciliatory Indigenous-state relations.

148. Val Napoleon “Legal pluralism and reconciliation” (2019) November Māori LR 1 at 7.
149. At 8.
150. Geoffrey Swenson “Legal Pluralism in Theory and Practice” (2018) 20 International Studies Review 438 at 443.
151. Napoleon, above n 148, at 7.
152. At 7.
153. At 7.
154. Swenson, above n 150, at 445.
155. At 445.
156. Napoleon, above n 148.

Cooperative relationships involve general concord between legal orders. Although the state’s “normative legitimacy” is commonly accepted, non-state legal orders retain “a significant degree of authority and autonomy”.¹⁵⁷ Major clashes between legal orders become less frequent, focusing on social rather than existential issues,¹⁵⁸ and authorities are willing to collaborate on shared goals. Cooperative relationships commonly form where legal orders shift towards the consolidation of “legitimate state authority” and “democratic governance bound by the rule of law”.¹⁵⁹ However, the prevailing substance of the law may not be just. A legal order characterised by the archetype “invariably still produces winners and losers”, so the suppression of one order by another remains possible.¹⁶⁰ However, where suppression is managed appropriately, this may be a workable archetype for enhancing Indigenous-state relations.

Complementary relationships involve the co-existence of all legal orders under the “umbrella of state authority”.¹⁶¹ The state assumes a legitimate role in the subordination and structuring of Indigenous legal orders, and has a mandate to assert its authority. Although a cooperative ethos between actors exists, Indigenous authorities are merged with the state and cannot operate independently.¹⁶²

B Strategies for Legally Pluralistic Environments

Swenson also identifies five strategies legal orders may adopt when engaging with one another: bridging, harmonisation, incorporation, subsidisation, and repression.¹⁶³ When navigating Indigenous-state relations, state actors employ these strategies in different forms.

Bridging involves allocating discretion to Indigenous or state authorities based on what a matter requires.¹⁶⁴ This allows actors to undertake workstreams more efficiently by adopting the most appropriate system according to the substance of the work. However, the effectiveness of bridging may depend on the willingness of Indigenous authorities to work within a state-instigated framework, which can be at the cost of self-determination. Swenson suggests bridging is an appropriate strategy within competitive and cooperative environments, where actors can already work with – rather than against – each other.¹⁶⁵

Harmonisation involves the alignment of Indigenous outcomes with the state’s normative framework.¹⁶⁶ Under a harmonisation strategy,

157. At 8.
     158. Swenson, above n 150, at 445.
159. At 445.
160. At 445.
     161. Napoleon, above n 148, at 8.
     162. Swenson, above n 150, at 445.
     163. Napoleon, above n 148, at 8.
164. At 8.
     165. Swenson, above n 150, at 446.
     166. Napoleon, above n 148, at 8.

Indigenous systems are “incorporated and legitimatised” by the state, where they promote actions consistent with state law, but Indigenous actors retain autonomy and legitimacy independent from the state’s normative framework.¹⁶⁷ Harmonisation can be a strong strategy to create a platform for positive change.

Incorporation involves the elimination of distinctions between Indigenous and state legal orders.¹⁶⁸ Indigenous systems will be both endorsed and regulated by the state. An example of incorporation would be creating a customary court to address Indigenous issues.¹⁶⁹ However, this strategy can lead to the assimilation of Indigenous systems into the state and impede genuine Indigenous self-determination.¹⁷⁰

Subsidisation involves the state seeking to “increase its capacity and appeal relative to non-state legal orders”.¹⁷¹ The strategy does not require Indigenous input or acceptance to be effective, making it the most common strategy in pluralistic environments.¹⁷² The state, however, may overshadow Indigenous systems where improvements are implemented successfully and detract from Indigenous peoples’ autonomy. Subsidisation should involve meaningful engagement with Indigenous peoples.

Repression involves the active eradication of Indigenous legal orders by the state.¹⁷³ There is no attempt to facilitate legal pluralism with Indigenous peoples. The strategy aligns with early colonial violence, which often voided the validity of Indigenous systems and ushered in state centrism. The presence of repression may indicate the need for a paradigm shift.

C Considerations for Applying Swenson’s Model

Swenson’s model is prefaced by the need for state actors to adopt a “thicker conception of the rule of law” towards non-state legal orders, with its “extensive institutional, economic, cultural, and political requirements”.¹⁷⁴ Thus, in the context of Indigenous-state relations, Napoleon asserts that we must not only look to Indigenous systems as merely a pattern of behaviour but as an entire societal structure containing “aspirations of law, logics, patterns, change, and legitimacy”.¹⁷⁵ In Te Pae Tawhiti, this will mean understanding the Wai 262 kaupapa (purpose), not merely the claimants’ submissions and Tribunal’s recommendations.

167. Swenson, above n 150, at 447.
168. Napoleon, above n 148, at 8.
169. Swenson, above n 150, at 457.
170. For example, where a divisive normative gap exists between legal orders and there are insufficient measures to hold the state accountable for decisions that limit Indigenous self-determination.
171. Napoleon, above n 148, at 8.
172. Swenson, above n 150, at 448.
173. Napoleon, above n 148, at 8.
174. At 9.
175. At 9.

Shifting the paradigm away from the “orbit of state law” is equally important.¹⁷⁶ Drawing upon Ambreena Manji and her insights as an Indigenous woman, legal pluralism needs to move away from the predispositions of state centralism.¹⁷⁷ Te Pae Tawhiti should be conceptualised as a “non-oppressive, decolonised form of legal pluralism”.¹⁷⁸

In such ways, Swenson’s framework can be used to critique and improve the Government’s strategy for Māori engagement in Te Pae Tawhiti.

V Analysis

Parts II and III elucidated the Models’ different strategies for Māori engagement and Part IV introduced the theoretical framework. Now, Part V will analyse each Model using the theoretical framework and Part VI will draw the insights together to consider whether the Government’s strategy for Māori engagement in Te Pae Tawhiti is moving in the right direction.

A Overlapping Spheres Model

(a) Archetypes

The Overlapping Spheres Model pursued a cooperative relationship. Māori would exercise authority in one sphere, which would sit alongside and intersect another sphere in which the Crown would exercise authority. The structure would allow Māori to have substantial autonomy and discretion in the work programme. Whilst the Crown retained its normative legitimacy as a governing body, the Model represented a transition to a more enabling pluralistic environment. The Kete groups each anticipated that the Māori sphere would make decisions that the groups would need to accommodate.¹⁷⁹ The Kete groups would consider how Māori could attain decision-making power with respect to taonga works, and how Māori-Crown engagement on taonga species could shift from a “transactional, issue-by-issue approach to a relationship-based model”.¹⁸⁰ For example, the MBIE-initiated hui on the protection of taonga by New Zealand’s intellectual property regime targeted Māori engagement. Similarly, DOC, in establishing Ngā Aitanga ā Nuku, provided iwi, hapū and whānau direct decision-making power over access to cultural materials. These examples indicate the pursuit of a cooperative relationship in which Māori and the Crown could move forward on Wai 262 issues in a “spirit of partnership”.¹⁸¹

176. At 7.
177. At 7. See Ambreena S Manji “Imagining Women’s ‘Legal World’: Towards a Feminist Theory of Legal Pluralism in Africa” (1999) 8 Social & Legal Studies 435 at 436.
178. Napoleon, above n 148, at 7.
179. Preliminary Proposals, above n 58, at 28–29.
180. At 28–29.
181. At [26].

However, the Crown’s internal two-tiered structure did retain undertones of a complementary relationship. First, the Crown’s proposals positioned the MOG squarely within the Crown’s sphere of authority instead of the overlapping space between the Māori and Crown spheres.¹⁸² Given the MOG’s executive oversight function, and the MOG being where those Ministers closely involved in Māori development were engaged in Te Pae Tawhiti, the Crown’s contributions to Te Pae Tawhiti appeared to be those most endorsed by the state.¹⁸³ Secondly, the Kete groups were dependent on the Government’s ability to advance the Wai 262 kaupapa at the implementation level. For example, MBIE expressed that it was interested in reviewing its approach to Māori participation in international negotiations to progress the kaupapa under Kete Tuatoru. However, development and implementation of such policy was stalled due to a lack of knowledge of how best to engage Māori.¹⁸⁴ Whilst the government of the day was trusted to act in good faith in pursuit of a cooperative relationship, the two-tiered structure was fundamentally an extension of state authority that was separated from the Māori sphere.

Historically, the Crown’s approach to Wai 262 was more characteristic of a competitive relationship.¹⁸⁵ First, the Government did not seek to understand the multifaceted issues involving mātauranga Māori and taonga, and its ad hoc engagement led to a fragmented and poorly conceived response.¹⁸⁶ By contrast, the Overlapping Spheres Model cross-agency engagement created the potential for an effective response. Secondly, the Crown was preoccupied with settling historical Treaty claims, which limited its capacity to accept a genuine relationship approach.¹⁸⁷ By contrast, the Overlapping Spheres Model signalled that the Crown envisioned an ongoing collaborative relationship with Māori in the post-settlement era. Finally, the Crown sought to retain the greatest degree of authority possible, which rejected the guarantee under te Tiriti to allow Māori to exercise tino rangatiratanga and hindered reconciliation on these issues.¹⁸⁸ By contrast, the Overlapping Spheres Model encouraged agencies to enable, rather than lead, collaborative initiatives, empowering Māori authority and facilitating reconciliation.¹⁸⁹

182 At 28–29.

183. See Napoleon, above n 148, at 8.
184. Hui Kete Tuatoru (18 September 2019), above n 73, at 12–13.
185. See generally Houghton, above n 6, at 871–880.
186. “Cabinet Paper 2022”, above n 7, at [14].
187. Preliminary Proposals, above n 58, at 8.
188. See Valentin Clavé-Mercier “Politics of Sovereignty: Settler Resonance and Māori Resistance in Aotearoa/New Zealand” [2022] Ethnopolitics 1 at 4–10.
189. “Notes from taonga works and copyright kōrero”, above n 61, at 5.

(b) Strategies

The Crown adopted at least three strategies for engaging Māori and Crown legal orders in the Overlapping Spheres Model: subsidisation; bridging and harmonisation (combined); and incorporation.

Subsidisation was an early strategy to foster cooperation. The Government aspired to “actively uphold the principles of protection, participation and partnership as we consider the current and future opportunities relating to traditional knowledge”.¹⁹⁰ To do so, it sought to increase its capacity to engage with Wai 262 by directing agencies to reflect on how they were engaged by Wai 262, to understand what the new relationship may entail.

The Government used bridging when empowering Māori to determine the best processes for addressing Wai 262 issues – for example, when the intellectual property system review in Kete Tuatahi resulted in consensus that Māori should be better resourced to develop solutions within their paradigm. Harmonisation was demonstrated by the Government’s work to legitimise increased kaitiaki autonomy in protecting mātauranga Māori and taonga.

Incorporation has been used as a strategy in pursuing a cooperative relationship. Targeted engagement empowered the Māori sphere, mitigating the risk of the enlarging Māori sphere being reabsorbed into the Crown sphere¹⁹¹ and building a platform for a genuine relationship between the Indigenous and state legal orders. The engagement, which involved face-to-face interactions, privileged Māori values of whanaungatanga (kinship) and manaakitanga (kindness, hospitality), and both MBIE and MFAT held themselves accountable to a broader conception of a Māori legal order.¹⁹² Further, in Kete Tuatoru, the Government sought to create opportunities for Māori to engage in international forums alongside the Crown. Whilst Māori worked within the state’s framework for international participation, the Crown ensured that Māori perspectives were endorsed rather than repressed.

However, incorporation was also concomitant with the partial backslide into a complementary relationship. Notably, the Crown’s budgetary support for Te Pae Tawhiti was ultimately a matter for the Crown to decide, regulate and endorse, despite acknowledgment of the stakes involved and the novel nature of the response. Ultimately, Te Pae Tawhiti budget bid required clear and transparent targets for the Government to work towards.

190. Preliminary Proposals, above n 58, at 3.
191. Compare He Puapua, above n 6, at 11.
192. See MBIE above n 79, at 8–9.

B Levers Model

(a) Archetypes

The Levers Model attempts to sustain the cooperative relationship developed through the Overlapping Spheres Model. The Levers Model hinges on the Māori-Crown partnership.¹⁹³ The emphasis on a Māori-Crown partnership may suggest that Māori retain some autonomy and authority. Minister Mahuta has continued to publicly signal that the Government does not intend to stifle conversations regarding constitutional reform.¹⁹⁴ Further, the Government has reiterated the importance of a positive Māori-Crown relationship to progress the Wai 262 kaupapa.¹⁹⁵ To that end, the new evaluation framework supports the Government to “tailor, adapt and learn in partnership with Māori” and enables progress to be measured.¹⁹⁶ In some ways, the Levers Model implicitly recognises Māori autonomy through a positive Māori-Crown relationship, and the opportunity for Government accountability (provided by the new evaluation framework) may mitigate concerns that Te Pae Tawhiti will regress to a competitive relationship archetype.

However, there is no longer explicit recognition of a separate Māori sphere of authority. By focusing on progressing mahi, the Crown has arguably asserted greater autonomy in the Māori-Crown relationship, taking a more dominant design role.¹⁹⁷ Given the central focus in the Wai 262 claim on tino rangatiratanga and self-determination,¹⁹⁸ subsuming the Māori sphere into a standalone Māori-Crown relationship weakens the cooperative relationship and allows undertones of a complementary relationship to creep back into Te Pae Tawhiti. This might be a practical consequence of moving to an implementation stage. Nonetheless, Māori should resist being drawn back into the Crown’s penumbra of governance.

(b) Strategies

Subsidisation is central to the Levers Model as the Government develops its internal capacity to deliver on Wai 262 outcomes. TPK has undertaken a stocktake to consolidate the status of all Te Pae Tawhiti-aligned workstreams across government.¹⁹⁹ The stocktake will hopefully assist the Government to reinforce weaker areas in the whole-of-government

193. “Cabinet Paper 2022”, above n 7, at [29].
194. Nanaia Mahuta “Speech to Constitutional Kōrero conference” (22 November 2022) <www.beehive.govt.nz>.
195. “Cabinet Paper 2022”, above n 7, at [15]. In practice, Māori stakeholders have observed growing economic and cultural benefits due to Te Pae Tawhiti: at [38].
196. At [31].
197. Contrast Preliminary Proposals, above n 58, at [32].
198. See Statement of Claim (Wai 262, 9 October 1991) at 1–3.
199. “Cabinet Paper 2022”, above n 7, at [17.4].

work programme²⁰⁰ and ensure the Government’s approach can “mirror the complexity and breadth of the kaupapa”.²⁰¹

The Government seems to be engaging Māori in Te Pae Tawhiti-aligned workstreams. For example, the National Policy Statement for Indigenous Biodiversity requires that local authorities consult tangata whenua (Indigenous people) as partners in the management of Indigenous biodiversity.²⁰² The Government must remain vigilant in its engagement with Māori. Swenson’s original model suggests that subsidisation can derail if the state does not build capacity using Indigenous perspectives as a foundation.²⁰³ Te Pae Tawhiti must be a whole-of-government response.²⁰⁴ There is a risk that agencies build capacity on shaky foundations if they focus too inwardly on their designated portfolios.

Bridging and harmonisation will likely become more prevalent in the Levers Model as agencies identify which actors must be supported. Te Pae Tawhiti aspires to close gaps between Māori and non-Māori. For example, the New Zealand Productivity Commission reported that Māori commercial firms have yet to see substantive changes in the intellectual property system to deliver on the protection of mātauranga Māori and Māori brand distinctiveness.²⁰⁵ The Government has adopted bridging and harmonisation strategies in response, allocating discretion to Te Taumata Whakapūmau to develop appropriate sui generis intellectual property legislation.²⁰⁶ Furthermore, the Kanohi Ora engagement process, which is financed by the Crown and effected by Te Taumata Whakapūmau, has been successful in engaging Māori across Aotearoa on Wai 262 issues.²⁰⁷

However, the Crown is still at risk of reverting to a problem-based approach to addressing Wai 262 issues. A successful bridging strategy is dependent on the Crown providing long-term financial support to Te Taumata Whakapūmau to continue developing a sui generis intellectual property regime, and further relinquishing discretion. Without financial support, Te Taumata Whakapūmau risks losing the expertise of Te Kahu Aronui, as the experts may concentrate on mahi linked to alternate income streams.

Moreover, a successful harmonisation strategy is dependent on the Government giving effect to the sui generis intellectual property regime

— or any other regime Te Taumata Whakapūmau proposes — without substantial changes. If the Government was to revise proposals in ways that promote Crown authority over Māori authority, it would be

200. Contrast Houghton, above n 6, at 872–874.
201. At [17.5].
202. National Policy Statement for Indigenous Biodiversity, above n 138, at 15.
203. Swenson, above n 150, at 453.
204. See Houghton, above n 123.
205. New Zealand firms: Reaching for the frontier, above n 101, at 56.
206. Mahuta, above n 116.
207. See Wellbeing Budget 2022, above n 113.

adopting an incorporation strategy rather than a harmonisation strategy

— subverting Māori self-determination in the process. The Government must, therefore, take great care to ensure that its actors deliver results through a relationship-based approach which recognises that Māori retain authority that is independent from the Crown. Otherwise, Te Pae Tawhiti will backslide to a more complementary relationship.

VI Discussion

The Government’s strategy for Māori engagement has so far sustained a positive Māori-Crown relationship in Te Pae Tawhiti. Nevertheless, the Government should proceed with caution when implementing the Levers Model.

The Levers Model may dilute the good work of the new paradigm introduced by the Overlapping Spheres Model. With the creeping undertone of a complementary relationship, the Government risks returning to ineffective and unpopular modes for responding to Wai 262 issues. The Government taking the lead at the implementation stage, for example, may cause Government actors to fall back on the predominant “we know best” attitude that pervaded the Wai 262 response prior to Te Pae Tawhiti.²⁰⁸ At least for now, the Levers Model empowers Māori to design frameworks and shape processes on the ground.²⁰⁹ Te Pae Tawhiti must continue to do so. Presently, Māori are endowed with only as much or as little authority as the Crown permits.²¹⁰ Māori should not need to depend on the Government to exercise authority.

The Levers Model is also more complicated than its predecessor. The Overlapping Spheres Model delegated responsibility for different workstreams to specific agencies. By contrast, the Levers Model identifies specific reforms as Te Pae Tawhiti mahi or Te Pae Tawhiti-related mahi. The change has potential implications.

First, it may be difficult for external parties to identify and evaluate progress without the Government officially releasing information. Interested parties could previously check the relevant Kete to identify which agencies were involved with each workstream and track how each workstream was being progressed. It is now unclear how the Government is organised, including whether the MOG and Kete structure endure, and interested parties are more reliant on the Government to proactively provide insights into its approach. In July 2022, a MFAT progress report on the “Mātauranga Māori Programme” stated that the Ministry would report on programme progress bi-monthly. However, reports have not been published since August 2022.²¹¹ Whilst the new evaluation

208. Houghton, above n 6, at 880.
209. See, for example, “Cabinet Paper 2022”, above n 7, at [17.1]–[17.5].
210. See Dominic O’Sullivan Beyond Biculturalism: The Politics of an Indigenous Minority (Huia Publishers, Wellington, 2007) at 30.
211. MFAT, above n 147, at [19].

framework is promising for Government accountability more broadly, being unable to review progress as it happens compromises transparency.

Secondly, complexity could obfuscate the work being conducted to progress the different Te Pae Tawhiti mahi and Te Pae Tawhiti-related mahi. Consequently, the project could become increasingly dependent on those officials with cross-agency roles, relationships and expertise. For example, the “Mātauranga Māori Review Steering Group”, which is responsible for implementing MFAT’s updated approach to Māori engagement, comprises five Government officials,²¹² and much of the progress has been initiated by just one of them.²¹³ This is especially concerning considering the political realities of Government. If the knowledge necessary for an effective response is held by only a few officials, Te Pae Tawhiti could be seriously disrupted in the event of agency restructuring or reshuffling, which happens often — especially with a change of government following an election.²¹⁴ The Government seems to have been motivated to highlight the benefits to productivity that come from an effective response to Wai 262. Whilst this could have been to present the work as meaningful to the public, the shift from the Overlapping Spheres Model to the Levers Model has come at the expense of simplicity.

VII Legal Conclusion

The Government’s strategy for Māori engagement is critical to the success of Te Pae Tawhiti work programme. The Overlapping Spheres Model had the potential to enable Māori and the Crown to reconcile on issues of mātauranga Māori because it emphasised tino rangatiratanga, te Tiriti o Waitangi and legal pluralist opportunities. In implementing that Model, the Government pursued a cooperative relationship, in which the Māori legal order would have a significant degree of authority and autonomy. The Levers Model is less effective in that regard. The language of partnership has already proven an ineffective and unpopular mode for responding to Wai 262. In returning to the language of partnership and abandoning the notion that Māori and the Crown should each have spheres of authority in Te Pae Tawhiti, the Government risks regressing the work programme into a competitive relationship. The Crown should proceed with caution to ensure that the Levers Model enables a Wai 262 response that respects tino rangatiratanga, and the article has demonstrated the potential of subsidisation, bridging, harmonisation and incorporation strategies to enable such a response. That is the article’s first conclusion based on the Indigenous lens for legal pluralism.

212 At [7].

213 At [10].

214. See Part VIII.

VIII Political Conclusion

Law does not operate in a vacuum and the results of the recent election demand that the author acknowledges the political context. The previous National-led Government (2008–2017) failed to advance the Wai 262 kaupapa in any meaningful way,²¹⁵ even refusing to issue a formal public response to the Tribunal’s Wai 262 report.²¹⁶ Te Pae Tawhiti originated under a Labour-led Government (2017–2020). Before the 2020 election, the author cautioned that “Māori should be awake to the possibility that a different government could dither or backtrack on the promises of Te Pae Tawhiti”.²¹⁷ Labour won that election and advanced the kaupapa. In 2023, the stakes are higher.

On 14 October 2023, the New Zealand public returned to the polls to determine the composition of the next government.²¹⁸ The incumbent left-leaning Labour Government was defeated and is to be replaced by a right-leaning National-led minority coalition Government comprising the New Zealand National Party, ACT New Zealand and New Zealand First – each of which campaigned on anti-co-governance rhetoric. National’s policies included: removing the decision-making authority of iwi-Māori partnership boards in approving local health plans;²¹⁹ disestablishing Te Aka Whai Ora (the Māori-led, independent Māori Health Authority) and replacing it with a Māori health directorate within Manatū Hauora – the Ministry of Health;²²⁰ and repealing the Three Waters legislation,²²¹ having taken particular issue with its “co-governance model” requiring an equal number of council and mana whenua representatives on the framework’s regional representative groups and regional advisory panels.²²² ACT’s policies also included disestablishing Te Aka Whai

215. See generally Houghton, above n 6, at 870–880.
216. At 871–874 and 880.
217. At 883. The article’s publication was delayed due to the COVID-19 pandemic.
218. “New Zealand Election Results” Electoral Commission <https:// electionresults.govt.nz>.
219. See Craig Ashworth “National would demote Māori health boards” (5 September 2023) RNZ <www.rnz.co.nz>. See also Pae Ora (Healthy Futures) Act 2022, s 32(2). See generally ss 29–32.
220. National’s 100 Day Action Plan (New Zealand National Party, 2023) at 3.

See “Election 2023: Expert pleads with parties for Māori Health Authority to be given a chance” (11 October 2023) RNZ <www.rnz.co.nz>.

221. See generally the Taumata Arowai–the Water Services Regulator Act 2020; Waters Services Act 2021; Water Services Entities Act 2022; Water Services Entities Amendment Act 2023; Water Services Legislation Act 2023; and Water Services Economic Efficiency and Consumer Protection Act 2023.
222. (9 June 2022) 760 NZPD 10341 per Simon Watts (National—North Shore): “National opposes a 50:50 co-governance model baked into the core of this bill. ... A co-governance model of public services is something that National will not support.” See Water Services Entities Act 2022, ss 27(3) and 47(2). See generally ss 27–31 and 47–51.

Ora and repealing the Three Waters legislation,²²³ as well as amending other legislation that it deemed to create “a state of two ethnically based separate ‘spheres’”.²²⁴ Further, New Zealand First’s policies included: removing Māori names of government departments;²²⁵ reinstating a law to allow referendums to veto decisions by councils to establish Māori wards (to represent constituents registered on the Māori electoral roll) in local government elections;²²⁶ and withdrawing New Zealand as a signatory to the United Nations Declaration on the Rights of Indigenous Peoples 2007.²²⁷ It is expected that at least some of these party policies will become government policies.

Whilst the parties did not campaign on Wai 262 specifically, their anti‑co-governance rhetoric suggests that Te Pae Tawhiti may be at risk. An Overlapping Spheres Model, where Māori would exercise authority in one sphere, the Crown would exercise authority in another sphere and the Treaty partners would exercise authority together in a relational space, may be inflammatory to anti-co-governance sensibilities. It is hoped that the Levers Model, which is less overt about Māori decision-making authority, and uses the language of partnership, will be palatable to, and retained by, the incoming Government.²²⁸ The Labour Government

223. ACT and New Zealand First each opposed the co-governance model in the Three Waters legislation. (9 June 2022) 760 NZPD 10349 per Simon Court (ACT): “the worst aspects of these reforms are the divisive co-governance proposals ... There is no rationale for continuing with the co-governance nonsense.” “Local Government Minister’s Dangerous Mistruths In ‘Three Waters’ Interview” (17 April 2023) New Zealand First <www.nzfirst.nz>: “policies, like co-governance and ‘Three Waters’, that create inequalities under the law are repugnant to the rule of law.”
224. “A path from co-government to democracy” (ACT, 2023) at 4–5.
225. “New Zealand First 2023 Policies” New Zealand First <www.nzfirst.nz>.
226. “New Zealand First 2023 Policies”, above n 225. See Local Electoral (Māori Wards and Māori Constituencies) Amendment Act 2021, ss 5–6. See also “New Zealand First Will Repeal Maori Ward Legislation” New Zealand First <www.nzfirst.nz>.
227. “New Zealand First 2023 Policies”, above n 225.
228. “Justice, Treaty and Governance” National <www.national.org.nz>: “We interpret tino rangatiratanga within Te Tiriti as partnership”.

has made significant progress in helping Māori build capacity to be in a position to work with the Crown on a Wai 262 response.²²⁹ The National-led Government should stay the course. No, it cannot wistfully hope that Wai 262 will simply “go away” if it is starved of political attention.

If the right-leaning parties desire to move on from Treaty settlements as quickly as possible,²³⁰ they ought to have the courage to address the underlying grievances and the good sense not to create new ones.

229. In 2020, the Labour-led Government announced $6,494,000 for 2020–2022 for the Wai 262 work programme, including to support Te Taumata Whakapūmau: Wellbeing Budget 2020, above n 57, at 77. See Geoff Short Next Steps for Te Pae Tawhiti – Te Taumata Whakapūmau Workplan for Māori-led Engagement on Wai 262 and Te Puni Kōkiri-led Work Programme (Te Puni Kōkiri, 6 August 2020) at 2–3. In 2021, the government set aside resources to continue to support Te Taumata Whakapūmau: Email from Shannon Tau (Senior Advisor, Te Pae Tawhiti) to Ministry of Foreign Affairs and Trade Staff regarding “Te Pae Tawhiti Update – Ministerial Briefing Paper” (24 August 2021). In 2022, the Labour Government announced

$17,070,000 for 2022–2024 and $10,590,000 for 2024–2026 for the Wai 262 work programme, including to support Te Whakapūmau and Te Kahu Aronui, and enable Crown cross-agency policy work on the programme: Wellbeing Budget 2022, above n 113, at 135. See Treasury Report: Upcoming Issues Briefing for the Minister – 9 December 2021 (Treasury, 9 December 2021) at 2–3. In 2023, the government continues to support Te Taumata Whakapūmau. “Wai 262 Taumata Whakapūmau” (2023) Wai 262 Kia Whakapūmau <www.wai262.nz>: “Wai 262 Taumata Whakapūmau are now in the processes of the emergence of a national Māori voice to speak with the Crown on ngā kaupapa o Wai 262.”

230. See, for example, “A path from co-government to democracy”, above n 224, at 2.