Te Kete o Karaitiana Taiuru (Blog)

This is an opinion piece as a Tikanga practitioner and Māori Data expert who is not a lawyer and has no formal legal training.

The recent Supreme Court judgement recognises Tikanga Māori is common law and applicable in the legal system. This gives further impact and recognition to the legal status of Māori Data Sovereignty and sets of Māori Data Sovereignty Principles that reflect Te Tiriti, He Whakaputanga and the United Nations Declaration of the Rights of Indigenous Peoples and Tikanga, all of which are reflected in the Supreme Court judgement.

It also reinforces that Iwi are not the only stakeholder of Maori Data. This has ramifications for the many consultations on the digital ecosystem that often only consult Iwi and not wider Māori communities and practitioners.

Furthermore, the implication of Tikanga being recognised as common law has implications for AI systems that use Māori Data and an AI salient with Māori Data could be one step closer to claiming personhood using current legislation and the application of tikanga, therefore claiming whakapapa.

 

What is Tikanga?

Tikanga Māori has become a common term in modern society. Understandings what tikanga entails can vary considerably. “Though a few people are quite knowledgeable, the vast majority know little about the subject” (Mead, 2016).

“Tikanga Māori translates as Māori custom, representing and indicating customs and traditions, heritage, hereditary tribal narratives. Our protocols of responsive Māori and indigenous methods, tikanga are distinctly insightful for reflection and celebration to look to the future with increasing pride of our customary tikanga sources. Reclaiming of our identity, unique tikanga knowledge opportunities that have been handed down through many generations and have been accepted as a consistent, steadfast, and appropriate to infuse our sovereignty as a positive change a transformative progressive agent. A way of achieving and fulfilling certain objectives and goals. Such proven methods together with their accompanying protocols are integrated into the general cultural institutions of society and incorporated into the cultural system of standards, values, attitudes and beliefs” (Marsden & Henare, 1992).
Tikanga is just a subset of a Te Ao Māori view.

Mead further defines tikanga as “Referring to the ethical and common law issues that underpin the behaviour of members of whānau, hapū and iwi as they go about their lives and especially when then engage in the cultural, social, ritual and economic ceremonies of their society (Mead, 2016, p. 16).

Tikanga does not preclude new circumstances and needs as they arise. But before creating new tikanga for modern day circumstances, one must have an intimate knowledge of Te Ao Māori first. Tikanga must not be obfuscated to suit one’s own needs and personal circumstances as research suggests occurs in academia and government consultations (Hutchings & Reynolds, 2005).

The New Zealand Human Rights Commission recognises the need to include Māori spirituality as a fundamental tikanga “Maori spirituality is an inherent part of tikanga Māori, linking mana Atua, mana whenua and mana tangata. The recognition and protection of tikanga Māori (culture), in accordance with international human rights standards and with the Treaty of Waitangi, therefore cannot be separated from Māori spiritual beliefs” (Human Rights Commission, 2004, p. 2).

 

Statement of Tikanga in the Decision

In the Statement of Tikanga of Sir Hirini Moko Mead and Professor Pou Temara, it is stated:

19. The agreed series of statements speak to: the overall place of tikanga in Aotearoa; the intersection between tikanga and the state legal system; the nature of tikanga (and its associated principles); and the key tikanga principles relevant to this case.

20. These statements are as follows:

Ngā Whakataunga a ngā Mātanga Tikanga
Me whakauru ngā mātāpono o te tikanga Māori ki roto i ngā ture o te whenua.
Tikanga Māori is the first law of Aotearoa.
Tikanga Māori principles are part of the common law of Aotearoa.
Decisions about mātāpono (principles) are always subject to variables such as concepts, practices, and values, as relevant to the circumstances.

Section 54 of the Tikanga Statement confers that Iwi do not have sole sovereign rights over all Māori Data when it is acknowledged “Whānau, hapū and iwi continue to exercise tikanga Māori”. This confirms the High Court CIV-2021-485-624 [2021] NZHC 3319 decision with Māori health data that Iwi do not own the data.

 

Statement of Tikanga for Māori Data

In relation to Māori Data Sovereignty being recognised in Common Law, I would suggest the following tikanga statement

“Māori Data and digital eco system that uses Māori Data is a Taonga that contains the mauri of the descendants of Māori deities, taonga and Māori Peoples, therefore it contains mātauranga and whakapapa”.

 

Supreme Court Judgement

Key statements made by the Supreme Court in their judgement that recognises Tikanga as common law.

Section 128 mentions the term Mana tangata, and by implication, whakapapa and whanaungatanga, and Section 131 mentions Mana tuku iho. Section 122 that Tikanga must inform and, in appropriate cases, control how decisions about tikanga in the common law are made and how tikanga may develop to meet new circumstances.

The judgement also agrees with the Tikanga Statement and states that Tikanga was the first law of New Zealand and has a current place in New Zealand common law. In Section 126 ” tikanga or tikanga-derived principles are part of the fabric of Aotearoa/New Zealand’s law and public institutions through legislation, the common law and policy” and is an Article II Tiriti relevant and highlights Aotearoa/New Zealand’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples.

I suggest that this tikanga could be used against providers and creators of bias Māori data. Data is a Taonga paper, Data has a mauri and whakapapa that uses an individual/whānau/hapū/iwi mana. When data collectors create basis Data against Māori, this creates a hara that must be addressed. The Māori Data Ethics Model could be used here to restore the mana, in addition to Mead’s Tikanga Test.

 

Advisors

Another important statement by Sir Hirini Moko Mead and Professor Pou Temara was in regards to how people are familiar with Tikanga – I will refer to that as social tikanga. But that there is some tikanga that is at higher levels shared in whānau and via lines of genealogy via karakia, waiata etc. and even tapu. The relevance to this is that it has become common for Māori in government and academia to create kaumātua advisory groups of their whānau to be Tikanga experts when due to government lead cultural assimilation, Tohunga Suppression Act 1908, urban drift etc, they are likely to not be tikanga experts but able to provide worldly and learnt knowledge.

An example to substantiate the comments by Sir Hirini Moko Mead and Professor Temara is from Story by Professor Rawinia Higgins Deputy Vice-Chancellor (Māori) / Tumu Ahurei of Victoria University of Wellington and Basil Keane, Ministry for Culture and Heritage’s Director, Māori Digital Projects, with degrees in law and Māori studies “Between 1920 and 1960 there was a significant decline in the number of speakers of Māori. Negative societal values and attitudes towards the Māori language continued to penetrate the education system and spilled over into the home environment. English eventually became the dominant language in Māori homes because many Māori came to see English as the language of success, achievement and advancement.”

The Tikanga Statement advisors reflect this with a mixture of age groups and the statement that each member has tikanga expertise in individual fields. We now need to re-evaluate kaumātua groups with digital and consider “tikanga expert” groups.

Furthermore, the issues that arise from Māori researchers who are not raised in tikanga is that fictitious tikanga is created and the authors become recognised by Pākehā as Tikanga experts which results in more fictitious tikanga being promoted within the academic institutes as described in The Obfuscation of Tikanga Maori in the GM Debate and in my other writings specifically associated with gene research and Māori Data.

 

Conclusion

Māori Data and digital eco system that uses Māori Data is a Taonga that contains the mauri of the descendants of Māori deities, taonga and Māori Peoples, therefore it contains mātauranga and whakapapa”. Therefore tikanga must be considered with Māori Data Sovereignty and the iterations of Māori Data Soverignty Principles that do not mention Te Tiriti o Waitangi, He Whakaputanga and  The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) are not Māori principles, not tika.

 

References

Human Rights Commission. (2004). Human rights in New Zealand today: Ngā tika tangata o te Motu : New Zealand action plan for human rights.

Hutchings, J., & Reynolds, P. (2005). The Obfuscation of Tikanga Maori in the GM Debate.

Marsden, M., & Henare, T. A. (1992). Kaitiakitanga: a definitive introduction to the holistic world view of the Māori.

Mead, S. M. (2004). Whakapapa and the human gene. In. Wellington: The Bioethics Council.

Mead, S. M. (2016). Tikanga Māori: living by Māori values (Revis ed.). Wellington: Huia Publishers.