Dr Claire Charters, Associate Professor Auckland Law School and director of the Aotearoa Centre for Indigenous Peoples and the Law. (Photo supplied)

Dr Claire Ngamihi Charters, an associate professor at Auckland Law School, has been an advocate for Indigenous rights all through her career. That’s been a global interest for her since she studied law at Otago. Since then, with an LLM from NYU in the US and then a PhD from Cambridge in the UK, she’s been sought after for roles with the United Nations, where she’s led various groups dedicated to Indigenous rights. 

Naturally, though, she’s had a special focus on the rangatiratanga agreed on in Te Tiriti o Waitangi. And that’s led to her working, here in Aotearoa, for constitutional reform and a sharing of power between the Crown and Māori — including as the head of the Aotearoa Centre for Indigenous Peoples and the Law. Given the Crown’s unhealthy obsession with being in charge, it’s not the sort of territory that lends itself to speedy progress. But, as Claire explains to Dale, she, like many others, is in it for the long haul.

 

Tēnā koe, Claire. I understand that, although you’re Auckland-based these days, you were a Rotorua girl.

Kia ora, Dale. Yes, I grew up in Rotorua and I come from Ngāti Whakaue as well as from Tainui and Ngāpuhi and Tūwharetoa. But I spent most of my time in Ngāti Whakaue areas. I was there from a baby till leaving school for uni. 

My surname, Charters, comes from the Pākehā side of my dad’s family. Dad is Richard, and his father, Dr Win Charters, married my nana, Ihipera Rika, known more commonly as Nuki, who was from Ngāti Whakaue. They met in the 1930s in Rotorua when my grandfather was a registrar at Rotorua Hospital. Mum, Barbara Dawson, is Pākehā, and her whakapapa goes back to England.

Claire’s nan Ihipera Rika (eldest) with some of her siblings and other pā kids, in the 1920s. (Photo supplied)

So you’re a Rotorua-raised kid. I bet you were one of the bright ones.

I went to Rotorua Girls’ High School, which was a great school. I’m not sure you could call me a bright kid. I always did enough to do okay and make sure I was in the top stream. But just enough. My parents encouraged me to take German or French or some other language as opposed to te reo, which was what I was interested in. They thought that I could always learn Māori later on. 

Their idea was that everything on the Māori side would follow naturally. So they pushed me to do well in te ao Pākehā. Then I did an exchange year in Germany when I was in my sixth form year and ended up speaking German fluently. But my nana, who I spent a lot of time with, in Rotorua, used to speak te reo around me. I think her hope was for me to be pretty strong in both worlds.

Did the fact that you were doing well put you offside with some of the other Māori kids at the school? 

I don’t remember feeling that way. Except for maybe in the final year of school when you start to get prizes and things. I think I got on pretty well with everybody. But I was quite deliberate about trying hard, but not too hard. It wasn’t until I was at university that I started putting some real effort in.

Kapa haka? 

Not much. In fact, I sing really badly. My aunties, especially Aunty Moana (Kereopa), would tell me that I had an awesome voice, but I don’t think that’s true. In fact, I know it’s not true.

Claire and her nan, Ihipera, in Pōneke, 1982. The family lived in Pōneke from the 1950s – 1980s, before returning to Rotorua.

A lot of people I’ve spoken to over the years say that living overseas was, for them, a really formative experience. You’re forced to grow up and embrace another culture. Do you think that the year in Germany was a significant stepping-stone for you?

Absolutely. I was in quite a small village in Bersrod, Reiskirchen, and I had amazing whānau there. It was just like a Māori whānau experience. And there was another important aspect because I was interested in the history of Nazi Germany and the atrocities there in World War Two — and in how they’ve dealt with that as a nation and as people.

I was very close to one particular grandfather (Opa) and grandmother (Oma). My Opa had driven trucks for the Nazis. I got to know him and other people who were part of that generation and who’d played a part in the horrific German behaviour. I wanted to understand how a nation could behave like that and then try to atone for it. 

My much beloved host parents, Manfred and Christel, didn’t realise what had happened in the war years until they were in their 20s. And then there’s my generation who, as young Germans, have felt the intense guilt, even though they had nothing personally to do with Nazi Germany.

How could a whole society get swept up in this sort of nationalist fervour?

There was an element of arrogance in the appeal of Nazism. People anywhere like thinking that they’re better than others. And they enjoy hearing political leaders telling them that. 

That’s true of colonisation as well. The colonial European countries thought that they were superior. And that belief allowed them to justify carrying out atrocities in the countries they were colonising.

Yes, and you can make others feel inferior by being dismissive of their knowledge systems and social structures.

That’s how colonisation works. Telling you that what you know is not as important as what the colonisers know.

You’ve delved into a really interesting area through your legal studies at Otago and then offshore. How was it that you chose Indigenous relationships with the law as a speciality?

I think that’s because my dad had been in Māori politics and was a lead negotiator for Ngāti Whakaue at a formative period in my life. He told me not to get into Māori politics. And as soon as somebody tells me not to do something — particularly a parent — then I want to do it. My daughter Mia is the same. But I think I’ve always been motivated by ideas of justice, and the issues of justice that matter to me most are Indigenous peoples’ rights. 

But regarding the legal bit, I didn’t actually know that it was going to be part of the picture. I did law on top of my arts degree because I thought I had to do something kind of sensible on the side. And then I had awesome professors, John Dawson and Mark Henaghan, who encouraged me to do my honours dissertation in law on what we now know as the UN Declaration on the Rights of Indigenous Peoples. 

Then the world opened up to me. I could see that law could be used for social justice. And I could see that I could combine my passion for Māori rights with Indigenous peoples’ rights on a global scale. 

So everything came together at that point. Law can be a tool for both justice and injustice. Even today our state legal system causes injustice in a big way — just think of the Foreshore and Seabed Act. But it can also be a tool for justice because it can lead change. 

Claire with her biggest supporters — her dad Richard and mum Barbara, in 1992. (Photo supplied)

You’ve studied how international law affects peoples and cultures. But in this country, there’s been a hesitance to accept and sign up to the United Nations Declaration on the Rights of Indigenous Peoples.

Successive governments have been ignoring the UN Special Rapporteur’s recommendations to address the discrepancies in our treatment of tangata whenua. What does that say about our country? I know we’re signed up to it now, but it seems as if that’s been done grudgingly.

The declaration was adopted by the UN General Assembly soon after the foreshore and seabed controversy, when there was a lot of racist rhetoric in Aotearoa. Helen Clark’s government was so committed to the foreshore and seabed legislation that the same attitude flowed through into their approach at the international level — and it led to New Zealand being one of only four countries to vote against it. 

But I think that’s changed. When you study human rights, you can see that it’s really common for a state to reject particular rights, such as human rights, for a while. Then gradually those rights start to permeate at the domestic level. Now there’s a real openness to international law and Indigenous peoples’ rights — and I’m excited to see what might happen in the future. 

Last year, I chaired a government-appointed working group to come up with some ideas about how New Zealand might realise the Declaration on the Rights of Indigenous Peoples. If the government picks up on it, it could be an interesting way forward. That’s because, for us, the declaration is about honouring Te Tiriti o Waitangi and finally establishing some form of rangatiratanga.

I hope that kind of constitutional transformation is on our horizon. And that’s something that I’ll be working on for the next couple of decades.

Decades! You’ve got some big mahi there. We’ve got to honour the Treaty, but we’ve got a Waitangi Tribunal that has only recommendation powers, and governments have a habit of shelving the reports and not acting on them. 

We also have the 1835 Declaration of Independence. Some people think that declaration entitles them to challenge the legitimacy of the New Zealand government and therefore its laws. Judges have struggled with that suggestion. Are they right to be dismissive of the argument?

Good question. The courts are basically a state institution and, at heart, are upholding state law. So as long as state law claims to be exclusive and omnipotent, the courts don’t have much choice. 

If New Zealand state law changes — and I think it is changing — and the courts are part of that process in bringing in more tikanga Māori and greater respect for Te Tiriti rights, then the courts can start upholding those values and rights as well as state law. 

What needs to happen is that we recognise that there are at least two legal systems. The state legal system is here to stay, whether we want it or not, but we need to rejuvenate, and have greater support for, and practise, tikanga Māori through our own legal system as well. 

That happens in other countries. In fact, what I find is that New Zealand is far behind other states in respecting Indigenous self-determination and tino rangatiratanga. We can learn a lot from others where there is recognition of Indigenous legal systems — and where those Indigenous legal systems are still practised and still regulate much activity. 

What I’m thinking is less of a combined state law/Indigenous law hybrid. I’m thinking more of a tikanga-based legal system that is a parallel legal system. 

Our state courts struggle with this idea because they’re basically a state institution. Nonetheless, there’s some awesome mahi going on in the courts. We’re trying to shift New Zealand state law so that it’s more accommodating of tikanga Māori.

But that’s different from recognising and rejuvenating our tikanga Māori processes. Other states do this, and we shouldn’t be afraid of it.

Claire (second from left) pictured at the UN. She was appointed by the President of the United Nations General Assembly to help him with negotiations to enhance Indigenous peoples’ participation in the United Nations.

That sounds as if you feel that the two could operate side by side.

Absolutely. There’s no doubt that they can co-exist side by side. In the US, there are almost 600 Indigenous jurisdictions that are alive and well, and that’s a good thing. There are really important areas where tikanga Māori and state law should come together and work out solutions to issues, be they the environment, property ownership, or foreign affairs.

But there also has to be space for Māori dispute resolution so that Māori law can operate and be recognised by state law. Until that time, you don’t have equality between people. Māori are going to be subject to a state legal system that’s not our legal system. That’s inequality. 

It’s no surprise that we have these sad statistics in criminal justice, housing, health, education, and so on. Inequality is a product of the colonial system, and we’re still subject to the colonial system. The state legal system is still colonial, so it’s not surprising.

The Children’s Commissioner is calling for Oranga Tamariki to pass all the resources to Māori. It seems like this “for Māori, by Māori” kaupapa is gaining strength. What are your thoughts on a call like that from Andrew Becroft?

I’m not an expert in tamariki rights, but it seems to me that what the state has been doing has not been working. So something quite transformative needs to happen. And that’s true with the environment, too. I think Māori could well have better solutions and better ways of dealing with environmental issues, be it climate change, water, or whatever.

You used the word transformative. What would be the most transformative action that the New Zealand government could take to create a more even playing field for our people?

I think we need constitutional transformation. We need a governance structure where there is Māori governance and state governance working side by side, and also working together on a lot of issues. 

But there needs to be independence, too. There needs to be a recognised independent Māori authority to bring equality between the people and to ensure that Māori are no longer subject to a colonial legal system. 

How you do it is difficult and it’s something I’ll be thinking about for the next three or four years as part of having a Rutherford Discovery fellowship. 

It will take time, but I think it’d be good for all New Zealanders.

There’s the review of our constitution, or lack thereof, spearheaded by Moana Jackson and Makere Mutu. Is this ultimately of value? Or is it just the government ticking boxes?

Matike Mai is absolutely valuable and I think they’ve taken the right approach. It’s something Māori need to work out first — to work out what our ideal structure is. And that’s what I think they’re proposing with their six different models.

It’s essential that Māori come up with ideas that suit us. And the next step is for us to try and negotiate with the state on how that might look. With Matike Mai, I don’t think it needs the sign-off of the state government at all. It’s really a Māori proposal.

And then, once we work out what we think constitutional transformation should look like, or what we think a fair constitution would look like based on Te Tiriti, the Declaration on the Rights of Indigenous peoples and so on, then we start talking to state government about what that might look like. 

In terms of the government often not complying with international norms, like the Declaration on the Rights of Indigenous peoples, that will be a process that’ll take some time. Part of that process will be addressing the constitutional imbalance and ensuring that there is realisation of a right to self-determination for Māori in this country, which is part of the declaration. It’s all tied in together.

Do you think we’re developing the critical thinkers needed to advance Māori challenges for more autonomy in our land?

I think we’ve always had great critical thinkers. In the legal world, we’re so lucky to have Moana Jackson and Annette Sykes, to name a few. Also, Ani Mikaere is so important. And then, in our communities, we have so many kaumātua who’ve been thinking about these issues all their lives.

That’s what Matike Mai brought out. They hosted more than 250 hui — talking to our people who have strong ideas about what a Māori constitution might look like. And we have any amount of critical thinking coming through. For instance, just with our tauira Māori at Auckland law school, we have awesome brains ready to devote themselves to seeing this kaupapa go forward.

Claire with her husband Anaru Erueti, and tamariki, Max Hema Erueti Charters and Mia Ihipera Erueti Charters.

Some of the roles you’ve had are important because you take the taha Māori and our pride with you when you travel overseas. You already have UN experience, and I’m predicting more ahead. When you talk about these Māori issues on the international stage, what recognition of our situation do you get from those you talk with, and how are we helping other First Nations people?

The perception of Indigenous rights in New Zealand is often really positive, and people do want to learn from us. But often that’s based on quite shaky ground — because New Zealand remains one of the most colonial states because of the concentration of power in the state and the lack of sharing power with Māori. The perception of Aotearoa and the perception we have of ourselves is often quite false.

But what is inspiring for other Indigenous peoples is that Māori do have political clout. That’s where we exercise the most power. Not so much legally but politically. And that’s in contrast with other states where Indigenous peoples make up small percentages of the population. Such as the US and Canada and Australia.

But, being 16 or 17 percent of the population and growing, Māori can’t be ignored. That’s where, internationally, people look to us and see positive things happening, particularly around the rejuvenation of te reo Māori. 

And what impresses them, too, is the way that, at the national level, so many New Zealanders identify with Māori culture — and the fact that it’s part of the New Zealand identity as a whole. 

Maybe we’ll have a fair and equitable society one day, but it could be some generations away. And so the struggle continues. Do you have some confidence that we’re heading in the right direction and that we’ll achieve true partnership? Are you an optimist or a pessimist?

Optimist. Totally an optimist. You couldn’t do this mahi without some optimism. But I’m definitely hopeful. It’s just that there’s a lot of convincing to be done. 

Now that I’m a bit older, I see that there are certain periods of time when you have intense movement forward, and then sometimes things stagnate for a while. It’s a two-steps-forward, one-step-back kind of process. But I’m hopeful that we’re moving into a positive phase in the next decade. 

There was a time when I was going back and forth to New York almost every six weeks to two months. I had quite young kids, and I remember thinking, in my exhausted state: ‘‘Is this really worth it? Worth all this effort?’’ 

It can be fun going to New York, but not that often. And not with that much jetlag.

But I also remember thinking: ‘’Of course it’s worthwhile.’’

(This interview has been edited for length and clarity.)

Claire Charters (Ngāti Whakaue, Tainui, Ngāpuhi, Tūwharetoa) gained her LLM from NYU in the US, and her PhD from Cambridge University. She is an associate professor at Auckland Law School, University of Auckland, and Director of the Aotearoa Centre for Indigenous Peoples and the Law.

She has been an advisor to the UN President of the General Assembly on Indigenous Peoples’ participation at the UN (2016 – 2017); chair of the UN Voluntary Fund for Indigenous Peoples, Trustee (2014 -2020); chair of the cabinet-appointed working group to provide advice on the realisation of the UN Declaration on the Rights of Indigenous Peoples (2019-2020); co-chair of the New Zealand Human Rights Commission Kaiwhakatara Advisory Group on human rights, Te Tiriti rights, and Covid-19; and worked on the negotiations for the adoption of the UN Declaration of the Rights of Indigenous Peoples (1998 – 2007).

© E-Tangata, 2020

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