Irihapeti Edwards and Stephanie Muller-Pallares
It’s not always easy to find the time to get a handle on the big issues of the day. But, with public submissions being called into the operation of the COVID-19 Public Health Response Act (passed under urgency last month), and the police looking for feedback on its trials of Armed Response Teams — Irihapeti Edwards and Stephanie Muller-Pallares, both in their early 20s, have teamed up to spell out the issues in this helpful guide. They hope it’ll encourage other young people to engage with the issues around the law, and the risks it poses, especially to Māori.
So, what’s the sitch?
Only a few months after our first case of Covid-19 was announced, New Zealand made headlines around the world for its dramatic decline in active cases.
After several weeks of a nationwide lockdown, our prime minister, Jacinda Ardern, added yet another feather to her (crimson) cap, as New Zealanders across the country prepared to celebrate their victory with some long-awaited hugs, non-instant coffee, and heavily anticipated eggs bene.
Meanwhile, a bill was introduced to parliament on May 12 and ushered in under urgency, ahead of the transition from Alert Level 3 to Alert Level 2. The aim was to mitigate the risks of a second outbreak and to control gatherings. By midnight the next day, the bill had royal assent, and had turned into an Act virtually overnight.
If this flew under your radar, you’re not alone.
Here’s why this is important.
Not only was the Act passed in less than two days, but it was also passed without a select committee taking a look at it. This means that it wasn’t examined in depth by a chosen group of MPs, or people who specialise in fields concerning the bill, as the legal process usually permits. Paul Hunt, our Chief Human Rights Commissioner called it “a great failure of our democratic process.”
Perhaps one of the most contentious parts of the Act is Section 20, entitled “Powers of Entry”. And yes, it’s exactly what it sounds like. It allows police officers to enter pretty much any space (“any land, building, craft, vehicle, place, or thing”) without a warrant — and yes, this would include marae.
The only exception is “a private dwellinghouse” (in the original bill, marae were also excluded) — but, even then, police don’t need a warrant if they have “reasonable grounds to believe” that people there are breaking Level 2 rules. Also, police “may use reasonable force in order to effect entry”. So, basically, not much of an exception.
Sounds slightly concerning, right?
Exactly. One week earlier, the Human Rights Commission released an 18-page report entitled “Human Rights and Te Tiriti o Waitangi”, in which they urged the government to “renew and reinvigorate its commitment to Te Tiriti and to work in partnership with Māori and jointly devise and implement strategies in the recovery phase.”
At its core, and according to the Treaty, partnership should be the priority. When it’s not, it can place already vulnerable communities into even more vulnerable and at-risk positions. Partnership is fundamental to navigating crisis situations, without impairing autonomy within Māori communities.
The signing of the Treaty of Waitangi. Painting by Marcus King, 1938 (Alexander Turnbull Library, G-821-2)
If you’re not exactly familiar with the Treaty, let’s fill you in.
The Treaty of Waitangi, signed in 1840 by the British Crown and 540 Māori chiefs, is often referred to as New Zealand’s founding document. Although it’s celebrated as a national holiday, it’s often the subject of much controversy, as both the English and Māori versions vary significantly in meaning and interpretation.
Many believe that the rights and possessions of Māori were quite literally lost in translation. For example, while the English version guarantees “full, exclusive and undisturbed possession of their lands and estates, forests, fisheries, and other properties” in Article 2 to the Crown, the Māori version grants tino rangatiratanga, or full authority, over their lands and taonga (treasures) to Māori.
Today, the New Zealand government acknowledges and commits to upholding the principles of the Treaty, including participation, partnership and protection, in all of its civic duties.
However, in the case of the COVID-19 Public Health Response Act, many feel as though this commitment to partnership hasn’t been adequately upheld.
Lack of partnership has been an issue since lockdown began.
Well, actually since about 1840, but who’s counting.
Simon Bridges, the chair of the Epidemic Response Committee said he received over 50 proposals for significant Māori organisations to speak. Six weeks into lockdown, he’d invited only two. Neither of them were the Māori Council, who later decided to host their own hui. Matthew Tukaki, the council’s executive director, said he felt that Simon Bridges “has not just ignored us, but about every Māori organisation around town.”
Pounamu Jade Aikman, whose PhD explored the ongoing experiences of police violence against iwi Ngāi Tūhoe, expressed his concerns about unwarranted entry power, its overlay with the police’s Armed Response Teams trial, and the disproportionate effects these laws will have on Māori communities. This ARTs trial, which also gathered controversy for its lack of partnership with Māori, has since ended its six-month reign and is now open for public submissions.
It’s yet another example of how legislation, without adequate consultation with Māori, is undemocratic in nature. Matthew Tukaki says “there was no discussion with the New Zealand Māori Council, despite repeated requests after we became aware of it.”
In addition, Action Station recently conducted a survey of 1155 Māori and Pasifika people, and found that 87 percent of them said they felt less safe knowing that police in their communities were armed. And 91 percent said they were “much less” likely or “less” likely to call the police.
Furthermore, one of the amendments changed the review date for the law from two years to 90 days, but Dr Aikman reiterated the concern that it’s only a date for review by the government — and it doesn’t necessarily mean the Act will come to an end after 90 days or when Covid-19 is officially eradicated.
Okay. But aren’t marae literally meeting houses?
Engaging and understanding cultures that we aren’t familiar with can be a difficult feat. Often, it requires confronting pre-existing social biases and replacing them with open-minded curiosity. So, when colonial power settled in and made its presence known throughout Aotearoa, clashes in ideology and practice were common and expected.
For Māori, marae are sacred spaces where respect for protocol is expected at all times. Yes, marae can be places to meet, mourn, and occasionally make merry, but it would be grossly inaccurate to assume that Māori don’t prioritise the health and wellbeing of the people there — and within their facilities and land as well.
When it was revealed that “marae” and “dwellinghouse” had been lumped together in the original bill in the same way that “bread” and “washing powder” would be in a shopping list, many believed it exposed a deeper absence of understanding of te ao Māori, and the insidious colonial idea that Māori can’t be trusted within their own spaces.
Okay. Gotcha . . . but would police really abuse their power?
As history shows, they do have that potential.
While the purpose of this article is not to delve into the many series of events where police have abused their power, it is important to reiterate one thing. The distrust many Māori have for police comes from recent and very legitimate places of fear, and it’s rooted in historical racism.
Police have raided marae, homes and settlements of Māori communities many times over the last two centuries. You might find it instructive to spend an afternoon on Te Ara reading about events such as those at Ruapekapeka, Parihaka, Maungapōhatu, Takaparawhā (Bastion Point) and Ihumātao. There’s more than a hint of police brutality there.
Excessive force by police at almost all of these events has resulted in the destruction of homes and property, arrests, physical and psychological harm to people, intergenerational trauma and, in many historical instances, death. However, many groups have since received little or no formal apology from the New Zealand police — nor any offers to negotiate. Nor compensation, either.
Protesters at Takaparawhā (Bastion Point) reoccupation in 1982. (Photo by Gil Hanly, courtesy of the Auckland War Memorial Museum)
These aren’t just old and outdated examples. Discrimination towards Māori is as present as ever throughout the criminal justice system today.
The New Zealand Department of Corrections’ most recent statistics reveal that Māori men represent 52.8 percent of the current male prison population, while Māori women represent 60 percent of the female prison population.
Previous detailed reports by Corrections have indicated that Māori are more likely to be reported, apprehended and convicted, more likely to be arrested and convicted for cannabis use, more likely to be more severely punished than non-Māori and a staggering 3.5 times more likely to be sentenced to imprisonment. On top of that, Māori were only half as likely to have legal representation in court.
And the startling facts don’t stop there.
A 2013 study conducted by JustSpeak, a “youth-led movement for transformative change in criminal justice”, found that Māori are 1.7 times more likely than Pākehā to end up in court.
Julia Whaipooti, a human rights lawyer, told world leaders in 2018 (at the UN Permanent Forum on Indigenous Issues) that one of the most concerning facts related to the criminal justice system in New Zealand was that $2 billion had been spent on prisons in the previous two years, while only $2.2 billion was the total spent on Treaty of Waitangi settlements.
The data is confronting, and it should be.
Bronwyn Kerr, a Pākehā social worker in justice and abuse recovery fields, has also expressed her concern: “Working with Māori who are in or just out of the corrections system, I see that many are victims of unconscious bias, lack of cultural knowledge or flat-out racism and have fallen through the gaps of a system that provide support through a Pākehā lens.’’
She goes on to talk about how it is important to communicate that, while middle-class Pākehā like her often have the belief that “the system” is there for us and is doing its best, “we need to understand that this is not the experience that a lot of people have, and there is a very good reason for certain groups of people to be scared of this law, even though you may not be.”
This sentiment was also strongly reflected in a report from the Human Rights Commission. It said that honouring the Treaty and human rights commitments “is vital to ensure an effective response to COVID-19 and to prevent the erosion of trust and confidence within Crown-Māori relationships.”
Unfortunately, it’s clear that, while Māori are statistically the most over-represented throughout the criminal justice system, they still remain the most legally under-represented throughout the same system.
So Māori are more vulnerable to police discrimination. We get that. But aren’t we all vulnerable to Covid-19?
According to Te Ara, the 1918 influenza epidemic killed eight times more Māori than Pākeha. And in 1913, when smallpox affected around 2000 people, most of them were Māori. And all 55 deaths were Māori.
A study by the National Influenza Centre (ESR) in New Zealand is among many which found that Māori and Pasifika people, men aged 65-79, as well as those living in the most deprived areas, are the populations most vulnerable to strains of influenza. It’s also for this reason that the Human Rights Commission report said that we require “proactive support from the government for rangatiratanga, to ensure equitable outcomes for tangata whenua.”
Roadblock in Te Tai Tokerau. (Photo: Facebook/Hone Harawira)
Considering all this, it’s understandable that Māori communities were among the most proactive in response to Covid-19.
One of the many examples of Māori led decision-making was the various roadblocks around the country shortly after the lockdown was announced — in Ōpōtiki, East Cape and Te Tai Tokerau to name a few.
There was on-and-off support by cops across the regions. But, despite the roadblocks being labelled as technically illegal, interviews with those on the roadblocks indicated that many of them felt that the police did a good job of supporting the iwi-led action.
For instance, Rueben Taipari (Te Whānau-ā-Apanui) said “they put pretty strict protocols in place”, that there’d been “great support from the community”, and that: “It’s the closest to the Treaty relationship that I’ve seen from the police.”
It seems that police and Māori relations may have taken a step in the right direction, and this is an example that proves partnership is possible and that iwi can and should be trusted to make decisions to keep the wider communities safe.
After a series of complaints, one of the other few amendments made to the bill over the 48 hours was the removal of a clause that stated that only police can operate roadblocks. So, perhaps the government has also recognised that changing the power structure won’t reduce people’s rights or safety. But, instead, it’ll help create safer spaces for all New Zealanders.
So . . . in order to engage with how the historical gap continues to damage New Zealand today, we’re gonna have to become better acquainted with the c-word: Colonisation.
Colonisation and indigenous practices have never been best friends, and you can see that the roots of the troubled relationship between police and Māori were there right back at the Treaty signings in 1840.
When New Zealand was forged, two parties with radically different worldviews signed up to become one nation — and the Treaty of Waitangi immortalised the importance of the Crown’s commitment to partnership with Māori.
But that’s only in theory. However, those promises of equality become nullified when partnership isn’t prioritised, especially in situations of crisis. The disparities and inequities that we see today, exposed by situations like Covid-19, are symptoms that stem from the same troublesome relationship that began with colonisation.
If these disparities and inequities aren’t something you’ve experienced, then it’s important that you understand that you are privileged.
“Partnership is critical during a crisis, as far more is at stake,” Dr Aikman explains. “Our communities are already over-policed, and it’s our people who are far more likely to be arrested, tasered, have a police dog set on them, prosecuted, or imprisoned. We have a history of racism, violence, and overreach by the police in New Zealand, inflicting tremendous harm to Māori and Pasifika for over 140 years.”
And he’d be right. Over the past few centuries, New Zealand has been shaped by unseen forces that have disadvantaged marginalised communities and eroded their right to autonomy over time. In this case, unwarranted entry and the over-policing of brown communities is nothing new.
Many have argued that the COVID-19 Health Response Act has exposed these shortcomings.
To properly grasp why this blanket law puts some people at much more risk than others, we have to examine and understand the long-standing issues that have grown out of colonisation, including the effects of previous pandemics on Māori, the reality of discrimination from police towards Māori in 2020, and the breaches of the Treaty of Waitangi in the law-making process.
While colonisation in some instances may be thought of as a “taboo” word, and certainly not regarded as an over-dinner conversation topic, it must be normalised for open discussion and ongoing dialogue. It’s also important to understand that colonisation has dramatically influenced the way New Zealand operates on a constitutional level.
New Zealand’s constitutional arrangements are unusual. Unlike most other countries, New Zealand has a constitution that can’t be found on any single piece of parchment. Instead, you can find the inkblots of our democracy bespattered among documents like the Treaty of Waitangi, the Constitution Act 1986, the New Zealand Bill of Rights Act 1990, and various British statutes including the Magna Carta 1297. (Yes, that old). The constitution protects citizens’ rights and keeps the government accountable to its people.
Talks of constitutional transformation to include indigenous rights, tikanga, and the autonomy of iwi and hapū are not new concepts. The Matike Mai Independent Working Group, for example, aims to “develop and implement a model for an inclusive Constitution for Aotearoa based on tikanga and kawa, He Whakaputanga o te Rangatiratanga o Niu Tireni of 1835, Te Tiriti o Waitangi of 1840, and other indigenous human rights instruments which enjoy a wide degree of international recognition.”
As our society evolves, constitutional and political reform is a necessary part of a nation that prides itself on progression and democracy.
Okay. So where does that leave us right now?
As we begin to adjust to the challenges posed by a society still grappling with the effects of Covid-19, our success should not solely be measured by numbers alone. New Zealand is a proudly diverse nation, built by the efforts of many. And an equitable, more positive future for all of Aotearoa depends on the solidarity of our communities and our commitment to partnership as a priority. Not as an afterthought.
Equality can’t be developed without equity, and this kōrero would mean little without addressing the inequities that exist and therefore prevent New Zealand’s progress. Autonomy and community-led leadership are crucial to maintaining our commitment to partnership as well as constitutional integrity.
Safari Hynes, a student at Te Herenga Waka Victoria University, puts it this way: “The devolution of Crown power and simultaneous capacity building within whānau, iwi and hapū will ensure Māori resilience for future events like Covid-19. They will also help us achieve constitutional arrangements that reflect Te Tiriti o Waitangi.”
So, while the principles of the Treaty have their highlighted importance in New Zealand’s constitution, it’s an uncomfortable truth that discrimination from police, and gaps within our judicial system, continue to disproportionately hurt Māori communities.
It’s time to discourage the notion that Te Tiriti o Waitangi, and our commitment to partnership, can be dismissed.
While it is true that our social psyche can’t radically change overnight, we must never underestimate the ripple effects of our collective power. It is only through unity that we can dismantle the systems that disadvantage others — and it is through unity that we can succeed.
Submissions to the COVID-19 Public Health Response Act open until Sunday, June 28. SUBMIT NOW.
Have your say on the police’s Armed Response Team trial here.
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