By: Jacinta Ruru

PubBLISHED IN LAND BACK | (2021) 1:2 ROOTED
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Jacinta Ruru (Raukawa, Ngāti Ranginui) is a Professor of Law at the University of Otago, Co-Director of Ngā Pae o te Māramatanga New Zealand’s Centre of Māori Research Excellence, fellow of the Royal Society Te Apārangi, and recipient of the New Zealand’s Prime Minister’s Supreme Award for Excellence in Tertiary Teaching.

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As I sit here in my beloved Aotearoa New Zealand in the first days of 2021, with the warmth of the summer sun upon the lands and waters, I commit myself to another year of service to my ancestors and my nations to do all that I can to help create a more just, reconciled country.  We all do.  We must.  Just as our relations have done in times gone by and will continue to do so in the future.

I think most about our responsibilities of care for Papatūānuku, our greatest ancestor, our earth mother.  We worry about how the lands and waters are now deeply polluted; biodiversity loss is at a crisis point.[i]  This unwellness in our lands – our whenua (our word for land, but also placenta, which helpfully reminds us daily of our relationships with our earth mother) – is reflected in our people, our Māori tribal nations.

Land stolen

The purposeful colonial destruction of the homelands of Māori nations, including our native forests, wetlands and fauna, commenced with rigour following the signing of te Tiriti o Waitangi / the Treaty of Waitangi in 1840. Māori nation leaders signed the Māori language version that clarified they retained their sovereignty of their lands and treasures (of course), but welcomed the British Crown to their lands to govern the growing number of English arrivals.  The trouble rested in the English language version of the Treaty and in English expectations in the following years.  This version recorded the Māori’s purported cession of sovereignty to the British Crown.[ii] While the Treaty is said to now represent an important component of our constitution, for the most part, the colonial government dishonoured the Treaty commitments (and still does). From 1840, Maori were purposively alienated from the management of significant natural features and resources.[iii] Even prominent ancestral treasures, such as the tallest mountain in the country, Aoraki/Mount Cook – the son of Raki (sky father)[iv] – were not exempt from the exclusionary ‘take-all’ stance of the Crown.  The mountain came under assumed Crown ownership and management in the 19^th century,[v] along with most of the lands and waters in the country.  

Māori connectedness to our lands has been seriously disrupted in the last 200 years.  The deliberate colonial disruption manifests in physical, spiritual and cultural loss. But we have never forgotten, and we have never given up hope for our flourishing futures.[vi] 

As I write, I recall the stirring words of one of our most renowned and loved Māori poets, Hone Tuwhare (1922-2008).[vii]  He wrote:

Papa-Tu-A-Nuku

Papa-Tu-A-Nuku

(Earth Mother)

We are stroking, caressing the spine

of the land.

We are massaging the ricked

back of the land

With our sore but ever-loving feet:

Hell, she loves it!

Squirming, the land wriggles

in delight.

We love her.

It is said that Tuwhare, in this poem, is writing about the 1975 Land March that he participated in.  This poem captures Māori action. Tuwhare and 5000 others, led by Dame Whina Cooper, a then-79-year-old Māori woman, walked the length of the North Island, arriving in the capital city of Wellington to present a petition signed by 60,000 people protesting the continuing ‘loss’ of Māori land to the then-Prime Minister. [viii] ‘Not one more acre of Māori land’ blazoned from placards held by the marchers, as they walked the 1000 kilometres side-by-side. 

The 1975 Land March marked a significant moment in the history of our country, especially for raising the conscience of New Zealanders to Māori-Crown politics. Not long after the signing ofthe Treaty in 1840, the colonial government had begun using the law to legitimise the stealing of land from Māori nations.[ix] The law was often overt in its intentions.[x] But few New Zealanders, other than Māori, knew (or know) these histories.

These Crown actions were of course all contrary to both language versions of the bilingual Treaty of Waitangi, international law and even the inherited common law (importantly, the doctrine of native title).[xi] Beginning in the mid-1990s, the Crown commenced accepting and apologising for this transgression by entering into modern reconciliation agreements with Māori nations. One component of the agreements enables the return of some Crown land to Māori. Land back.

Land back

The restitution of whenua (land), to me, means honouring the intent of, and responsibilities to, my ancestors and descendants, including those personified in the lands and waters around us; Papatūānuku. Land back means restoring honour, knowledges and practices. Restoring nations. It means everything. Or in the words of the Tūhoe nation, with the cancellation of national park status over their homelands in 2014, the return enables the possibility of the return to their “humanness.”

The Tūhoe negotiated agreement with the Crown is a great example of how innovative law can be if we wish it to be.  In 2014, Te Urewera National Park became simply Te Urewera: “a legal entity” with “all the rights, powers, duties, and liabilities of a legal person.”[xii]  The state law makes it clear that Te Urewera ceased to be vested in the Crown, ceased to be Crown land, and ceased to be a national park.[xiii]  Te Urewera is now freehold land and cared for by a new board of people who are mostly Tūhoe.[xiv]  The management plan to care for these lands – Te Kawa o Te Urewera – reads like no other national park management plan I have ever read. It deliberately sets out to “disrupt the norm.”[xv]  It strives to manage people for the benefit of the land (rather than manage land for the benefit of people).  It is a remarkable document that embraces a process of “unlearning, rediscovery and relearning to seize the truth expressed by our beliefs.”[xvi]  The orientation of the plan is stated as: “Deliberatively, we are resetting our human relationship and behaviour towards nature.  Our disconnection from Te Urewera has changed our humanness.  We wish for its return.”[xvii]  As embraced, “In all decisiveness, we are returning to our place in nature, as her child.”[xviii]  This plan knows that the answers to biodiversity wellbeing lie intimately within the lands themselves if we listen carefully:[xix]

Nature speaks all the time and is understood only by the sincere observer and heedful mind and heart.  Humanity has much to gain from reigniting a responsibility to Te Urewera for within these customs and behaviours lies the answers to our resilience, to meet a forever changing climate. Through committing to Te Urewera values, we are innovating our instincts and adjusting our behaviour to ensure a prosperous future that is secure.

Twe Uru Tauma Tua, Te Urewera Board, Te Kawa o Te Urewera (2017) at 7, online (pdf) at 11.

Te Kawa o Te Urewera exemplifies all that is possible when stolen lands are returned (and the solution of legal personality exemplifies how innovative state law can be if it wishes). This re-empowerment, through land back, demonstrates the possibilities of flourishing futures on the near horizon. Through the return of land, our love as Māori for Papatūānuku can become less constrained, more free, because we can once again massage her ridges by walking in movement knowing we are re-empowered to care for her. This care can once again entail heavy responsibilities to decision-make. This is good. 

State Law?

Do I see a pathway within state law to support the returning of land to Indigenous peoples? Yes, certainly. After all, law is flexible, even state law. Laws can reflect societal dreams and wishes. The state law in Aotearoa New Zealand has begun to return some land to Māori nations.  Sometimes the lands are returned in a freehold fee simple title.  Sometimes they are returned utilising a special land title,[xx] or a unique solution is found, as demonstrated by the case of Te Urewera.  I hope law students come to appreciate the bias in law and see this as a message of hope. Together we can re-create state law to reimagine justice, to know the histories of where we all reside and work, and to contribute towards the decolonisation of our societies and institutions.  Law students can be useful allies to Indigenous peoples and make commitments for good service towards reconciliation.  And, of course, Māori law students certainly have a job to do – to advance our ancestors’ dreams and our grandchildren’s aspirations – and law can help. Papatūānuku expects nothing less of us, her children.

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[i] Jacinta Ruru, Phil O’B Lyver, Nigel Scott & Deborah Edmunds, “Reversing the Decline in New Zealand’s Biodiversity: empowering Māori within reformed conservation law” (2017) 13:2 Policy Quarterly 65.

[ii] Claudia Orange, The Treaty of Waitangi. Te Tiriti o Waitangi. An Illustrated History 3rd ed(Wellington: Bridget Williams Books, 2020) at 53. 

[iii] The best records are with the Waitangi Tribunal: for example, see Waitangi Tribunal, The Ngai Tahu Report, vol 1(Wai 27) (Wellington: Waitangi Tribunal, 1991) at ch 2; Waitangi Tribunal, The Taranaki Report.  Kaupapa Tuatahi (Wai 143) (Wellington: Waitangi Tribunal, 1996). Alienation by dubious means, including confiscation, is also documented, and apologized for, in Crown-Māori settlement legislation, commencing with the first contemporary settlements: see Waikato Raupatu Claims Settlement Act (NZ), 1995/58; Ngai Tahu Claims Settlement Act (NZ), 1998/97.

[iv] See Ngai Tahu Claims Settlement Act, 1998 No 97, sch 80, for an explanation of the Ngāi Tahu cultural, spiritual, historic, and traditional values relating to Aoraki Mount Cook.

[v] See Jacinta Ruru, “Indigenous Peoples’ Ownership and Management of Mountains:

the Aotearoa/New Zealand experience” (2004) 3 Indigenous Law Journal 111 at 124.

[vi] See generally Mason Durie, Ngā Tini Whetū: Navigating Māori Futures (Wellington: Huia Publishers, 2011).

[vii] Hone Tuwhare, “Papa-Tu-A-Nuku,” (permission granted 4 February 2021); found in Hone Tuwhare, Small Holes in the Silence: Collected Works (Godwit: Random House, 2011).

[viii] Aroha Harris, Hīkoi. Forty Years of Māori Protest (Auckland: Penguin Books, 2007) at 74.

[ix] See generally Atholl Anderson, Judith Binney & Aroha Harris, Tangata Whenua. An Illustrated History (Wellington: Bridget Williams Books, 2014).

[x] See New Zealand Settlements Act (NZ), 1863.

[xi] Robert J Miller, Jacinta Ruru, Larissa Behrendt & Tracey Lindberg, Discovering Indigenous Lands: The Doctrine of Discovery in the English Colonies (Oxford: Oxford University Press, 2010).

[xii]  Te Urewera Act 2014, No 51, s 11(1). 

[xiii] Ibid at s 12.

[xiv] The land is inalienable, except in accordance with Te Urewera Act 2014, s 13.  See also ss 17-19 for the purposes, functions, and powers of the Board.

[xv] Twe Uru Tauma Tua, Te Urewera Board, Te Kawa o Te Urewera (2017) at 7, online (pdf): <https://www.ngaituhoe.iwi.nz/Te-Kawa-o-Te-Urewera>.

[xvi] Ibid at 9.

[xvii] Ibid at 8.

[xviii] Ibid at 15.

[xix] Ibid at 11.

[xx] For example, see the new ‘customary marine title’ created in the Marine and Coastal Area (Takutai Moana) Act 2011 No 3, s 58. For another example, whenua topu trusts are trusts that the Māori Land Court can establish to manage Māori land in the interests of the collective tribal nation rather than the individual owners: see Te Ture Whenua Māori Act 1993 No 4, s 216.