In 1999, the Ministry ofMaori Development Te Puni Kokiri was instructed to undertake a review of Government's role in Maori culture and heritage as noted in Cabinet Paper [CAB (99) M qIrS]. At that time and as reported to Cabinet, the review was called the Taonga Maori Review.ls It attempted to take into account the outcomes of the Historic Heritage Management Review and Culture and Heritage Sector reviews. These reviews were undertaken on the basis that all aspects of Maori culture and heritage would be transferred to the Taonga Maori Review.
The Taonga Maori Review had three main purposes. First, it tried to clarifY the Government's role in Maori culture and heritage. Second, it proposed organisational options for the development of more effective policies and delivery for the protection of Maori culture and heritage, which took into account the Treaty of Waitangi. Third, the review aimed to develop options for the establishment of the Maori Heritage Agency, including consideration on issues over functions, governance, funding, accountability, legislative implications, links with other agencies, and any other performance matters. The scope of the review identified outputs delivered by public service departments that impacted on Maori culture and heritage.The reviewwanted to ascertain the mechanisms and range of options that would develop more effective policies and delivery of Government's commitment to Maori culture and heritage. The review considered a range of functions and issues excluded from the Historic Heritage Management Review and the Culture and Heritage Sector Review, which included:
• The location of Maori language broadcasting and future responsibility for Te Mangai
Paho
• A distinct Maori heritage agency to provide for Maori heritage policy and leadership • Marae subsidy funding administered by the Lottery Grants Board
• The Maori Language Commission • The Maori Heritage Council
18 'The term 'taonga Maori' encompassed Maori culture and heritage. Taonga Maori was considered a very broad concept that includes both tangible and intangible aspects incorporating land-based historic heritage, natural resources and walli tapu (sacred sites), and also matters such as cultural property, nga toi Maori (arts) and te reo me nga tikanga (language and customs). Definitions of wahi tapu, the cultural sector, cultural activity, historic heritage and the arts were informed by those used in the Culture and Heritage Sector Review and Historic Heritage Management Review. See Appendix IV.
1 5 0 H E I WH ENUA O RA
• Te Puni K6kiri culture and heritage policy
• The Maori language strategy
• The Taonga Maori Protection Bill19 and the repatriation of k6iwi (Maori ancestral
remains)20
• Te Waka Toi/Toi Aotearoa
• The Aotearoa Traditional Maori Performing Arts Festival Society
• Maori Purposes Fund Board
• Maori Arts and Crafts Institute
• Wahi tapu and heritage orders under the Resource Management Act
1991
While the Taonga Maori Review had broad scope it aimed to assist the government in devising objectives that improved outcomes for Maori culture and heritage. For this thesis the interest lay in analysing the proposed government objectives and the ability of the arrangements to meet the role of government, particularly for Maori natural, environmental and cultural landscape values. As issues emerged during the course of the Historic Heritage Management Review, certain matters also arose for the Taonga Maori Review. These included the availability of information concerning Maori culture and heritage and the extent of policy development and strategic approaches to address Maori culture and heritage issues with protection foremost in mind. The review explored the fragmentation and co-ordination of responsibilities, and analysed the capacity of the culture and heritage sector to respond to Maori culture and heritage issues. The Taonga Maori Review also investigated opportunities for iwi and hapu involvement in management and decision making, especially in the actual protection ofMaori land and water based heritage within cultural landscape.
Maori culture and heritage in the Taonga Maori Review was encompassed within the term 'taonga Maori'. It had a broad reach including both tangible and intangible aspects that incorporated land-based historic heritage, natural resources and wahi tapu as sacred sites in ancestral landscape. The term also encompassed matters such as cultural property, '9 This bill was eventually assumed into the Protected Objects Act 2006.
20 This process is looked after by the Museum of New Zealand Te Papa Tongarewa through the Karanga Aotearoa Repatriation Research and active repatriation ofkoiwi tangata or ancestral remains project.
C HA P T E R F I V E 1 5 1
nga toi Maori as in the arts and te reo me nga tikanga, as i n language and customs. Previous reviews and reports such as the Culture and Heritage Sector Review and the Historic Heritage Management Review indicated that the Government did not have clearly articulated objectives in relation to Maori culture and heritage. In part, this was because it encompassed a wide range of activities. In some areas, such as Maori language, objectives were already well developed21 but in most areas, there were no objectives that offered clear direction for other taonga, particularly for land and water-based cultural significance within landscape.
The Taonga Maori Review explored the government objectives that might develop into an effective government system that actually protected and supported Maori culture and heritage. The review intended to develop public education strategies that fostered awareness and greater respect for the integral role Maori natural and cultural landscape meant for the identity of New Zealand. A key objective of the review was for Crown to actively partner with iwi and hapu, to support their iwi and hapu-led developments, their innovations or initiatives. By supporting Maori resourcefulness in tribal regions, Maori would then become more active decision-makers for cultural context, their natural resources and for cultural landscape management. Opportunities to partner also aimed to retain, protect and develop matauranga Maori as customary systems of understanding.22 A draft policy statement summed up Crown's role in Maori culture and heritage. It intended to provide and maintain an environment where Maori culture and heritage was respected, protected and enhanced for future generations. The Government's duties, derived from the Treaty ofWaitangi aimed to endorse kaitiakitanga as a function residing with whanau, hapu and iwi. Crown needed to actively protect Maori culture and heritage (derived from an ancestral landscape perspective) by providing for and supporting Maori participation in activities that impacted on or were influenced by their culture and heritage. The government had an interest in recognising that Maori culture and heritage was not static, where Maori contributed to an evolving national identity. It was in the government's best interest to support Maori culture and heritage as a unique part of New Zealand's
21 As in Cabinet Agreements Maori Languagr Policy: Options to Improve the Status and Vitality otthr Language [CAB (97) M 45/SC (4) j it was agreed that the Government's overarching Maori language policy objectives were to:
Increase the number of Maori who know the Maori language by increasing their opportunities to learn Maori Improve proficiency levels of Maori in speaking Maori, listening to Maori, reading Maori and writing Maori I ncrease the opportunities to use Maori by increasing the number of situations where Maori can be used
Increase the rate at which the Maori language devc10ps so that it can be used for the full range of modern activities Foster amongst Maori and non-Maori positive attitudes towards, and accurate beliefs and positive values about, the Maori language so that Maori-English bilingualism becomes a valued part of Aotearoa New Zealand society. 22 Derived from Draft letter addressed to Hon Dover Samuels, Minister of Maori Affairs outlining the scope of the proposed
Taonga Maori Review, Te Puni Kokiri Ministry of Maori Development, Wellington.
I n July 1999 a Maori focus sed review resulted from the Cabinet Agreements "Enhanced Ministry of Culture and Heritage" I CAB (99) M 17irSj Cabinet Paper. It was noted that Te Puni Kokiri Ministry of Maori Development, would seek to clarifY government's role in Maori culmre and heritage.
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identity, in order to ensure that all New Zealanders benefited. The Crown agreed that in partnership with iwi and hapu they had duties derived from the Treaty of Waitangi to take reasonable action to protect sites of cultural significance to Maori.2'
The proposed heritage management system had been devised to improve protection and management ofMaori historic heritage and to clearly define the duties and functions of central and local government. It aimed to align decision-making as closely as possible to the affected communities of interest by maximising local community consultation and involvement within a national policy framework. This ensured clear national direction and consistent standards for implementation. It was crucial that Maori participate and effectively protect and manage their heritage within ancestral landscape, as was Crown's consistency to address its obligations under the principles of the Treaty ofWaitangi.24 As part of policy implications an opinion was sought from the Crown Law Office. The
opinion sought to clarify to Cabinet the role government had in Maori culture and heritage. Te Puni Kokiri developed the following policy statement, which set out the government's role in terms ofMaori culture and heritage.
'The role of Government is to foster an environment where Maori culture and heritage
are
respected, protected and enhanced for future generations.Among the duties derived from the Treaty of Waitangi is the duty on Crown to actively protect Maori culture and heritage. In carrying out this obligation, Crown will take
all
reasonable and practicable steps to:• Recognise and support the
rangatiratanga
of whanau, hapu and Iwi and Maoriover their culture and heritage
• Uphold the
principle of partnership;
in developing and delivering policies thatimpact on Maori culture and heritage; in resolving differences with whanau, hapu and iwi over the impact of policies on their culture and heritage
Government also has an interest in achieving culture and heritage outcomes for all New Zealanders, and therefore:
23 It was noted in Cabinet Agreements that the objectives for the protection of sites of importance to Maori may, in some circumstances, be achieved though methods implemented by iwilhapu authorities, local authorities and the private sector. Cabinet Agreements, Historic Heritage Management, Reference CAB (97) M43/22.
24 Cabinet Agreements, Historic Heritage Management, CAB (97) M43/22. See Appendix Ill: Cabinet Minutes Relating to Maori Culture and Heritage.
C HAPT E R F I V E 1 5 3
• Promotes
Maori culture and heritage
as a unique p art of New Zealand's cultureand heritage
• Recognises that a dynamic and vibrant Maori culture contributes positively to
New Zealand's identity.'
After deliberating over the statement, Crown Law Office provided a final opinion on the revised draft policy statement, with specific issues over certain wording. Crown Law considered the circumstances to avoid possible risks to government, particularly if the statement was worded where it could be used as a benchmark against which to judge Crown action. Crown Law argued against the italicised wording highlighted in the statement and sought the use of the policy statement as being merely aspirational. They considered any consequences as political rather than legaL First, Crown Law argued against the phrase,
are respected protected and enhanced.
Crown Law felt that this phrase imported a standard, which might potentially be difficult to measure. They suggested that rather than having an open-ended approach thatare
be replaced withcan be
so as to provide a statement of aspiration, rather then one that specifies outcomes in terms of respect, protection and enhancement. Second, it argued that the inclusion of the word rangatiratanga was not relevant to the issues as the language of the other articles of the Treaty have not been incorporated. Crown Law also had concerns over difficulties in the precise meaning of the term, which in their opinion certainly challenged the concept of ownership. They required an assurance that government actually accepted Maori rights of ownership in relation to the matters potentially within the scope and meaning of taonga. It suggested an approach of acknowledging the concept of kaitiakitanga, which did not connote notions of ownership. Third, Crown Law noted that there could be advantages in spelling out the parameters of theprinciple ofpartnership
rather than using the concept in the abstract. It suggested rewriting the policy statement in line with current Treaty jurisprudence on the principles of the Treaty and the duties derived from them. Finally, Crown Law sought precise definition as to the exact scope of the concept ofMaori culture
and heritage.
In response to the specific comments on the statement from Crown Law Office, the revised draft policy was
only
intended as a government policy statement. It was not developed with the purpose of being included in legislation. The revised draft policy statement was unlikely to have any legal effect and therefore would not be enforceable by the Courts. The wordfoster
did not connote any specific outcomes in terms ofrespect, protection and
enhancement.
Therefore it was considered unnecessary to limit the role of government in Maori culture and heritage by reducing its role to fostering an environment where Maori culture and heritagecan be,
rather thanare,
respected, protected and enhanced. The term1 54 H EI WH E N UA O RA
rangatiratanga
was also considered central to the Treaty duty of the Crown to actively protect Maori culture and heritage. Any attempt to reduce the impact of the statement by replacing rangatiratanga withkaitiakitanga
needed resisting. Kaitiakitanga is an essential element of rangatiratanga. Kaitiakitanga does not convey what Maori understood in the signing of the Treaty- that they would be protected both in the possession of, with the mana to control and exercise authority over, their valued taonga. It was well understood by officials that Maori knew best how to protect their own interests and achieve this through the exercise of rangatiratanga.The Waitangi Tribunal research and claims process well recognises that tino rangatiratanga maintains peoples' ongoing distinctiveness, which characterises the Maori way oflife.25 The aim of government should therefore,
recognise and support
the rangatiratanga of whanau, hapu, iwi and Maori over their culture and heritage. Crown Law promulgated the phraseact reasonably and in good faith
as a characteristic of partnership. This was considered inappropriate as a replacement for the wordinguphold the principle if partnership.
Partnership not only requires partners to deal with each other reasonably, fairly and in good faith, but also each party shares a say in how the relationship is managed and where potential conflicts of interest may lie. Furthermore, it was not the role of Crown to