“If you can’t own your past you can’t own your future”
Written by Te Reo O Te Omeka Hau, winner of the FairWay Resolution Anne Scragg Scholarship 2018
He aha te mea nui o tēnei ao
Maku e ki atu
He tangata, he tangata, he tangata
What is the greatest thing of this world?
And I will reply
It is people, it is people, it is people
The above whakataukī or proverb speaks of the importance or sanctity of people in the world and is a reminder to us all not to forget that it is people that matter the most. Of most importance here is the fact that people all share a whakapapa and whakapapa is what binds all people. Whether that be the whakapapa of Adam and Eve in a biblical sense or that of Papatūanuku and Ranginui in Te Ao Māori.
From the beginning, wherever two people have had a divergent way of seeing things the beginnings of a dispute have arisen. Differences can arise from many things and can be exaggerated even more when two people lack understanding of each other’s world views or where the other’s perspective comes from and is none more evident than in the signing of this country’s founding document the Treaty of Waitangi.
Many of the misunderstandings of the Treaty in my view can be squarely placed at the feet of our epistemologies.
In understanding these different views and from whence they come in my opinion is the key to unlocking the remedial pathway forward for Aotearoa as a society.
With that, an understanding of the process to move forward is also required. A process which is not based on the existing hegemony or dispute resolution pedagogy but is agreed on between the parties, considers Te Tiriti and which ensures power imbalances caused by the effects of colonisation can be tempered to ensure an equitable partnership approach to moving forward.
This paper looks at what existing literature says in relation to mediating or being involved in a resolution dispute process involving Māori and indigenous peoples and makes some initial comments from my qualitative study of practicing Māori mediators and how they currently practice when the dispute involves a party who is Māori.
From the time of creation of Te Ao Māori the history of conflict and disputes within Te Ao Māori began. It is through the children of Papatūanuku, the Earth mother and Ranginui the Sky father that one of the first disputes can be traced. The idea of the separation of their parents from each other did not meet with the agreement of all the children of Ranginui and Papatūanuku. Tomas and Quince (2007) remind us that Whiro disagreed with Tane in separating their parents.
Indeed, if it is through Whakapapa that we can align and link ourselves to ngā atua and it follows that ngā atua are held as exemplars for us as tangata then it may follow that the causes of dispute between us as Māori can be inherent and descend from ngā atua. Perhaps these stories were created to ensure mankind would reflect on purpose and reason for a particular event or to understand that being in conflict is a natural state of being.
Tomas and Quince (2007) further advise that through the process of colonisation Māori over time gradually began to move away from matters of tikanga as they struggled to fit into a euro-centric way of life. With the adoption of the western world view Māori began acting alone thinking of oneself or the immediate whanau and moving away from an ideology of collective hapū responsibility.
Tomas and Quince (2007) advise that to move towards a process of dispute resolution involving Māori, fundamental aspects of tikanga must be considered and describe these fundamental aspects as whakapapa, mana, tapu and collectivity. These aspects or principles must also however be balanced with a practical process that reflects the reality of how Māori live today.
It should not however be a process that incorporates aspects of tikanga and kaupapa Māori over time into an existing dominant western system by way of incremental steps as this would only prove to maintain the existing control by western thought and logic. As Derby and Moon (2018) iterate:
“the notion of incrementalism is, in fact, subversive, anti-cultural, and destructive, and it contributes to the consumption and repackaging of Māori culture by Pākeha to a form that is palatable and acceptable to the coloniser. Māori culture is diluted and distorted in the process, while the Pākeha position of power becomes more concentrated.”
Dispute resolution and mediation within a Māori context however must provide for a tikanga basis. In this light, Tomas and Quince (2007) suggest, the system should be based on a framework that takes account of a balanced world and one that incorporates a “holistic” approach to its development.
Other Māori academics Mason Durie (Te Whare Tapu Whā) and Rose Pere (Te Wheke) agree and demonstrate this through their models for Māori health and confirm what rangatira already knew that in Te Ao Māori, the spiritual and physical co-exist as two parts of the whole, if one part is affected, the whole is affected, whether it is in the spiritual or the physical realm.
Tikanga assists Māori to balance these realities and is why it should be provided for in a dispute resolution process involving Māori.
Goodyer (2003) conducted research into the current Justice system and concluded that restorative justice has the potential to improve current justice services and claims that:
“Arguably, one reason why the traditional justice system is unable to deal with Māori needs is because of its euro-centric development and focus. Māori have traditionally resolved conflict communally and consensually on the marae, through group accountability, rather than individual retribution.”
The Ministry for the Environment identified that resolving of cultural conflict by methods and techniques of the hegemony was not a way forward and work was required on how to best address this issue. To this end Blackford and Matunga (1991) investigated whether mediation could provide a model of partnership that might be more conducive to Māori interests and values than other dispute resolution processes.
What the authors found however was that in environmental mediation which was prescribed under the Resource Management Act 1991 the Crown and its authorities (local and regional councils etc.,) had the final say in any mediation process and as such a state of equity did not exist between Māori and non-Māori.
In mediation terms this refers to an inadequate balance of power and without a balance of power the autonomy of parties to participate on an equal basis is severely affected.
Boulle, Goldblatt, and Green (2008) support this view and advise that “there are concerns that members of the dominant culture will prevail, particularly where mediation is mandatory and involves issues relating to the rights of minority groups.”
Parallels on the introduction of values-based processes into mediation can also be drawn in the writings of other researchers in indigenous dispute resolution principles.
Astor and Chinkin (2002) for example have written also of the ways that aspects of identity intersect and impact on mediation. They advise that in mediating in a dispute between aboriginal people where resources are provided to introduce mediation to these communities based on their own terms, those communities can adapt mediation to their needs, mediation can support self-determination by providing a mechanism for Aboriginals to resolve their own disputes without recourse to the formal justice system.
Further, Behrendt and Kelly (2008) advise alternative methods of dispute resolution can and should be developed that embody the cultural values of indigenous people as these can be more empowering for the participants. They describe:
“One of the advantages of employing dispute resolution processes that are built upon Aboriginal cultural values is that they reinforce those values and reassert Aboriginal authority. In this way dispute resolution processes that actually empower Aboriginal people can be seen as nurturing Aboriginal self-determination and sovereignty.”
This suggests there are mechanisms within indigenous cultural values that can be built upon to provide alternative and better processes for those indigenous peoples in mediation and conflict resolution.
As part my research project I identified and interviewed 10 practicing Māori mediators to see to what extent principles of kaupapa Māori (identified for the purposes of my project as mana, tapu, whakapapa and whanaungatanga) were used in the mediation process.
In terms of my study one of the standout results revealed so far is that all the Māori mediators that participated found it advantageous in being able to walk in two worlds, that of a western world and Te Ao Māori. Some believed it allows for the mediator together with the parties, to develop a process for engagement that suits their needs and at the same time is reflective of their cultural values. The point was further raised that where a process is reflective of cultural values and a process based on tikanga is employed the outcomes of these mediations appear to be more enduring than when tikanga is not used in or as a part of the process.
I look forward to informing on my other key findings once my analysis and thesis are completed.
Te Reo O Te Omeka Hau
Glossary of Māori terms and their meaning
Special Note: I loathe having to define these terms, concepts, words, as inevitably there are always dangers with trying to define something in a language foreign to the language from whence the concept originates never the less, some description is required to ensure understanding of the context in which they are used.
Aotearoa New Zealand – Land of the long white cloud
Hapū A collective of Whanau
Kaupapa Māori A Māori approach, a way of doing things from the perspective of a Māori world view
Mana Power, Integrity, Charisma, Prestige, Formal and Jurisdiction
Ngā Atua The Gods
Papatuānuku The Earth mother
Ranginui The Sky father
Tane God of Forest and birds
Tangata Person, man, human being
Tapu Sacred or the sacredness of something
Tikanga Customs and traditional values
Te Tiriti The Treaty
Te Ao Māori The Māori world
Whakapapa Family lineage, genealogy
Whakataukī A proverb
Whanaungatanga The practices that bond and strengthen the kinship ties of whanau
Whiro God of the Darkness
Astor, H., & Chinkin, C. M. (2002). Dispute resolution in Australia: Sydney : LexisNexis Butterworths, 2002
Barlow, C. (1991). Tikanga whakaaro : key concepts in Māori culture: Auckland, N.Z. : Oxford University Press, 1991
Behrendt, L., & Kelly, L. (2008). Resolving indigenous disputes : land conflict and beyond: Leichhardt, N.S.W., The Federation Press.
Best, E. (2005). Maori Religion and Mythology Part 1. Wellington, New Zealand: Te Papa Press.
Blackford, C., & Matunga, H. P. (1991). Maori participation in environmental mediation: Centre for Resource Management, Lincoln University, Canterbury NZ.
Boulle, L., Goldblatt, V., & Green, P. L. L. B. (2008). Mediation : principles, process, practice: Wellington, N.Z. : LexisNexis, 2008
Tomas, N., & Quince, K. (2007). Maori Disputes and their Resolution. In Spiller, P. Dispute Resolution in New Zealand. South Melbourne, Victoria, Australia: Oxford University Press.
Te Reo O Te Omeka Hau (Ngati Te Rino hapu of Ngapuhi) is the recipient of the 2018 FairWay Resolution Anne Scragg Scholarship 2018. Te Reo is an accredited mediator with a passion for resolving disputes through culturally appropriate processes. Based in Northland at Te Aroha Marae in Parakao Mangakahia, Te Reo is currently completing his Masters and his thesis explores how kaupapa Māori principles are reflected in the current practices of mediators in New Zealand.
Through his previous roles with the Māori Land Court, where he facilitated meetings between Māori owners and trustees, Te Reo developed an interest in dispute resolution. He enrolled in Massey University’s Dispute Resolution programme in 2013. He completed the Graduate Diploma in Business Studies (Dispute Resolution) in 2016 and is currently enrolled in a Masters in Business Studies programme, specialising in dispute resolution. Te Reo also holds a degree in Environmental Management (Iwi and Hapu development) and is an associate of the Arbitrators and Mediators Institute of New Zealand (AMINZ).
In 2017, Te Reo established his own mediation practice Omeka Resolution Services and he has contracted to FairWay to provide mediation services in the Far North. He also works as a Family Breakdown Assessor for Barnardos and Oranga Tamariki.