Taihakurei Durie: It’s time for an Upper House

by Dale Husband
Sun 5 Feb 2017
11 min read

Sir Taihakurei Durie, who heads the New Zealand Māori Council, has been a staunch and influential advocate of Te Tiriti o Waitangi for more than 50 years, including his time (1980–2004) as the chair of the Waitangi Tribunal.

In this conversation with Dale Husband, he reflects on New Zealand’s need for an Upper House, on the 25 years of Treaty settlements, and on the question of how many lawyers are too many. And he suggests how Māori should be commemorating Waitangi Day in 2017 and beyond.


When did you first take an interest in the Treaty? Can you take us back to that time?

I was born in January 1940, just before the 100-year Treaty celebrations. I grew up acutely aware of the Treaty because my kuia, Kahurautete Matawha, and her cousin, Ngahuia Te Tomo of Te Hiiri o Mahuta marae, reminded me that I arrived when the people were preparing for the Waitangi ceremonies. So the awareness started early, and increased with time.

I was at university when the New Zealand Māori Council was being reformed in 1962. That was when Sir Henare Ngata produced a paper on statutes that contravened the Treaty of Waitangi. That piqued my interest. At that time the New Zealand Māori Council was advocating official recognition of the Treaty of Waitangi, and they were pretty much laughed out of court.

Everybody — including some Māori — said that it was ridiculous. How can you give effect to a treaty that isn’t part of the legal system? A lot of people bought into that view. But the New Zealand Māori Council was adamant, and I agreed with their position.

When we look at the Treaty in 2017, there’s a feeling that we’ve made a lot of mileage. The situation must’ve been very different when you were growing up.

In the 1960s and 1970s there was a feeling among Pākehā that the Treaty was irrelevant. Who had even really heard of it? But that was certainly not so among Māori people. The Treaty was still very much on their lips, and it was what they talked about when they felt that they weren’t being listened to or respected in the way that they should’ve been.

I particularly remember that aspect of it because, like so many of our generation, I got a job pretty young. I started in the Feilding freezing works when I was 13. Legally, under the Factories Act, you were supposed to be 16 — and you had to be 18 before you could handle a knife. But they were so short of workers for the unskilled broom jobs that they were bringing in the kids whose fathers were on the chain and not inquiring too deeply about their ages. I proudly graduated to railing off on the Number 1 chain by the time I was 16, earning a grown man’s wages.

But what really struck me was that some of our most senior elders in Ngāti Kauwhata — people who held real status on the marae — were nothing in the freezing works. They were just workers on the chain. And while the industry was pretty good in the way it employed Māori, and made pork bones available for tangi, I could see that people who we admired and respected enormously as children were not recognised outside of our marae.

The other side of that was that few Pākehā leaders had ever set foot on a marae. One memory that stands out is that, in about 1950, the Mayor of Feilding came on to our marae because he knew the person who’d died. Everyone was impressed by that. But the mayor was in a hurry and he walked straight on to the marae. Not waiting for the call. Not waiting at the gate. It wasn’t his fault. No one had told him. He didn’t know what the procedure was.

The men were saying they’d better sit down because the mayor was coming on. So they interrupted the person who was on his feet. And my grandmother stood up and told the mayor to go back to the gate and told the speaker to carry on speaking. But that was how things were back then, when officials who had a significant say over the lives of our people hadn’t even been on to the marae.

You started off your life as a freezing worker and ended up a High Court judge. How did that happen?

I think we got there because we worked hard. My two older brothers had gone to Te Aute College ahead of me. The feeling was that my parents couldn’t afford to get the third one along there. But I was bringing in a pretty good pay from the works, and with an Ōtaki-Porirua scholarship I was able to get to Te Aute.

Once I got there, I knew one thing: I did not want to end up working the rest of my life in the freezing works. That’s no disrespect to those working there. I just thought there must be something better in life. The freezing works committed me to thinking that I could do much better and that we could all do much better.

Who were some of the people you admired during that period. And who encouraged you into law?

My grandfather, Meihana Te Rama Apakura Durie, had studied law at university, but he never completed his degree because his father died and he had to go back on to the farm. But he had already mapped out the direction for my two older brothers and me. Ra, the oldest, was to go on to the farm. Mason, the second oldest, was to take up medicine. And I was to take up law.

There were only two other Māori who were in the law course when I started: Hoeroa Marumaru of Putiki, Atihau Whanganui. And Betty Hura, daughter of Pateriki Hura who was very prominent in Tūwharetoa affairs. So there weren’t many we could look to. One person who had a big influence on me was Wiremu Parker of Waipiro Bay, a beautiful speaker in both Māori and English. He used to read the news in Māori, which came on for 10 minutes at six o’clock on a Sunday. Ten minutes for the whole week! That was the amount of Māori news we had in those days. Bill was very encouraging in saying that we should stick with the work that we were doing.

Another was Miria Simpson, who worked in the university library. Very effective in encouraging us to carry on. Vera Morgan was effective in a different way. She used to run a nightclub. She was good at kicking me out of the nightclub because I was a university student and shouldn’t be spending my time there. Some of the others were Polly Nathan, Ada Rangiaho, Don Manunui and Fred Katene. They all had a connection to Ngāti Poneke.

You’ve come to have a big influence on the way Māori, the law and the Treaty are regarded. As chair of the Waitangi Tribunal for more than two decades, you played a key role in bringing the Treaty into the public sphere. Even so, the Tribunal still only has recommendatory powers, if I’m using the right term. The government doesn’t have to listen if it doesn’t want to.

Correct. But the Tribunal has a very strong influence nonetheless. What we’ve got is the Treaty partially recognised in law. That’s to say it has been written into certain acts so that there’s an obligation to have regard to the Treaty. Or to acknowledge it in some way. The Treaty has definitely become part of the fabric of New Zealand society.

And tikanga Māori is now recognised as being part of the common law of New Zealand. Those are big breaks. But that doesn’t mean we can rest on our laurels. A lot of work remains to be done.

In illustration of that, we have the Children, Young Persons and their Families bill — the Oranga Tamariki bill. That’s now before the House. The bill, in its present form, would reduce the right of Māori to place children into a family within the whānau. That’s an issue of tino rangatiratanga in respect of our own children, and few things could be more vital than that.

What I’m saying is that we have the Treaty. It’s there. But the job isn’t done and it will never be done. We have to keep being vigilant to ensure that our rangatiratanga is being maintained.

I understand that you’re also an advocate of an Upper House in parliament as a protection for our Treaty rights.

Yes, I am. Each year the New Zealand Māori Council runs the Rua Rau Tau lectures on the last Sunday before Waitangi Day. These lectures are then broadcast on Waitangi Day itself. Last Sunday we had two speakers: Gareth Morgan and Tariana Turia. Gareth Morgan talked about the role of Māori in parliament and in particular a need for an Upper House that reflects the Treaty by being 50 percent Māori, 50 percent European.

It’s the same concept that Professor Whatarangi Winiata has been promoting for many, many years. But now we have a Pākehā who has set up a political party, and it’s one issue he’s campaigning on.

I think it’s the sort of thing that would give considerable status to the Treaty of Waitangi and ensure that its principles are properly represented in our constitution. The Upper House couldn’t block legislation but it could require legislation to be reconsidered by parliament. It would have the effect of ensuring that bills like this one relating to the placement of children are sent back to the House, if they don’t adequately reflect the terms of the Treaty.

How feasible would it be to achieve that sort of shift in our parliamentary structure?

It’s absolutely feasible. It would be easy to do. We used to have it until 1950. I don’t know why we got rid of it. Each of the Australian states has an Upper House. The federal government in Australia has a Upper House. Britain has an Upper House. The United States has an Upper House. Most of the Western democracies have a two-house arrangement.

New Zealand is actually unusual in not having one. I think it’s a very real matter and one that we ought to be considering. It doesn’t mean that an unelected group takes control, but it does mean that an unelected group has the opportunity to say to government: Hold on a minute. This does not fit with our constitution, and the Treaty is part of that constitution.

Some New Zealanders will oppose it, but that’s no different from how things were in 1962 when the Māori Council was formed as a national body and came up with a proposal that the Treaty should be recognised. People were saying you can’t do it and it’s not going to happen.

What I’ve learned from the leaders who were around at that time is that if you get the kaupapa right and if the purpose is good, then it will happen in time. It may take 10 to 15 years. Doesn’t matter how long it takes. It will get there eventually. That’s the attitude we have to take with these kinds of things.

The same is true for water. I’m satisfied in my mind, having looked very closely at tikanga Māori and Māori customary law, that Māori people saw themselves as owning their own waterways and having full authority over them. That needs to be recognised in some way.

People will say that you can’t do that because nobody owns water, according to Pākehā law. But if the principle is right — and I believe it is right — that will be recognised in time. That might not mean that Māori have a complete say over all the water. But it’s far better than what is happening at present, where the government is saying simply that Māori have only a cultural right but not a property right in water. Well, if that’s the Pākehā law, then that’ll be a good law for Pākehā. But that’s not the Māori law.

Coming back to the Waitangi Tribunal, we’re getting towards the end of the settlement programme, which seems to have been hurried along by government demands. Do you think the Tribunal has been able to deliver on what was hoped for when it was set up?

I think the Tribunal has delivered. I think it has delivered exceptionally well. I think the problem we have is that the Treaty claims settlement process was unilaterally determined by government without Māori agreement. And it’s the settlement process that is the problem — not the Waitangi Tribunal. The government is determining the shape of these post-settlement governance entities which are going to govern Māori interests. They’re not being determined by the people themselves.

The government is saying: “If you want to get your money you’ve got to meet these standards and these criteria.” But these are not agreed criteria. Just to give one example, government says you must draw up a list of all the descendants of a particular ancestor. They become the beneficiaries of the settlement. They become the tribe, in effect. And all of these people are able to vote on the future direction of the tribe.

The trouble is that the tribe used to be a community living together as a people. What the government has created is what they did long ago with the land. They individualised it, and the people were scattered. So, the problem is not with the Tribunal. It’s with the governance structures.

We’ve now got a lot of young Māori lawyers. Some really sharp minds. When you look at our legal scene, are you encouraged by what you see?

We’ve certainly got a large number of lawyers and, from what I’ve seen, the quality is good. But in terms of Treaty settlements, the claims process has been taken over by the lawyers — not just Māori lawyers, but lawyers generally. When the Tribunal was set up, Matiu Rata carefully provided for the right to have a lawyer appear before the Waitangi Tribunal, but it was only by the Tribunal’s leave. And leave might be declined or limited to ensure that the tribal leaders did not lose control of the claim.

We’ve ended up now with huge numbers of lawyers appearing on these claims, and that has created a difficulty. So when I said I have no problem with the Tribunal, I should qualify that and say that I do, in fact, have a problem with a process which allows all these lawyers to come in and dominate the job, because it diminishes the control of the hapū and iwi.

You can have 50 to 60 lawyers appearing, and that makes it very difficult for the tribe to maintain control of their own plans. It alters the way the tribe makes decisions. For example, in my own tribal district, any person can hire a lawyer and have a voice in the Waitangi Tribunal process, even though they may have no status on the marae.

They may hold no position of authority within the tribe, but their lawyer will be presenting to the Tribunal. And, if they’re a good lawyer, they will have one of the loudest voices in the proceedings. And that’s what we’re having to deal with at the moment.

Certainly, the claims process is coming to an end, but I do think the process has been distorted by the number of lawyers, rather than improved. Having said that, when I look at the quality of some of the Māori lawyers, it blows my mind. The progress that has been made in developing the understanding of tikanga Māori by Māori lawyers trained in state law is pretty incredible.

We’re coming up to Waitangi Day, and there’ll probably be some hara and raru — and, of course, some of the media delight in painting it as a controversial day, a day full of protest and disrespect. What feelings does the day evoke for you?

I don’t really want to say anything about the situation up there in the north, because that’s for them to talk about. But what I do want to ask is how we who are not from the north should be marking Waitangi Day.

As I see it, this is an opportunity for Māori organisations to showcase what they have done, what they are doing and what they propose to do to put Māori in control of their affairs. Let’s use this day as an occasion to give an account to the people for what we’re doing on their behalf. And the test should be: Are we fulfilling the Treaty mandate of maintaining full authority over our own affairs? And, if we’re lacking, where are we lacking? That’s not to say that everyone has to go to a dull meeting on Waitangi Day, but it does mean this is an occasion when we should be asking: “Are we achieving the principles of the Treaty of Waitangi?”


© e-tangata, 2017