Joe Williams can still belt out his famous tune Maranga Ake Ai, even if he rarely chooses to.

“I just don’t want to be the sad old bugger who gets up to sing a song from a generation ago,” he says. “I don’t want to be that guy.”

In April, Justice Joe Williams was knighted at his Ngāti Pukenga marae in Manaia. The youngest ever former chief judge of the Māori Land Court, Joe sat on the benches of both the High Court and the Court of Appeal before becoming the first Māori Supreme Court judge. And now he’s a knight of the realm.

Joe was once a member of the Aotearoa band led by Ngāhiwi Apanui. He was a charismatic performer with a big voice, but then he left to study law in Canada.

I joined the band in 1988 before leaving to start up the Moahunters. And I loved it, but I always lamented the fact that Joe and I never got to sing Maranga Ake Ai together. That song, which was written by Joe and Ngahiwi, was one of my earliest inspirations. It was an anthem for many Māori.

I met Joe many years later. One time, we drove together from Auckland to Rotorua, to the first ever Māori lawyers hui in 1988, where John Chadwick was voted president. The last time I saw him was when I gave evidence in the Wai 262 claim. By then, he was the chair of the Waitangi Tribunal. 

Then somehow I ended up subbing for him as a facilitator at the Indigenous Leaders programme at Stanford University. I rang him up and asked for his notes. “I don’t use notes,” he said. “You’ll be right.”

Fast forward to March 2021. Joe asked if I could whip out a few songs at his investiture after-party at the kura in Manaia, in return for that rare sit-down with him that I’d been chasing for so long. I built a case to persuade him to get up and sing Maranga with us. My case was good. The flashest Māori judge in the land gave his ruling. He would, we did, and all of that was captured on film.

My interview with Justice Sir Joe Williams screened on Te Ao with Moana, Māori Television, last Monday. This is the edited transcript of our nearly two-hour kōrero, which includes much that didn’t make the TV cut.

 

Moana: I understand that you were born in Hastings, that you were raised as a whāngai by your great-uncle and great-aunt, and that you’re the first one in your family to go to university.

Joe: I was the first one to get School Certificate, too. Going to Victoria University and learning at the feet of Ruka Broughton was amazing. He lived and breathed and slept te ao Māori tūturu. And he taught me that our culture is real and living and breathing and relevant and provides a guide to life now, just as it did 500 years ago.

And once he planted that seed in my heart, there was no looking back.

Probably like your family, we lived in a singing family. You had to sing. In fact, if you didn’t sing, you got a hiding. And those were the days when they had mini tankers. I think they’re illegal now, but you used to be able to buy a mini tanker and you’d get like 40 or 50 gallons of beer.

Anyway, us kids would get trotted out to sing a song to all the relations. And my song was Jake the Peg. The old man loved that song. And so that was my job — to sing that song everywhere.

My birth mother, Faith Aroha, was from Manaia. She was a young, pregnant, unmarried mum. And those are the sorts of circumstances where the whānau kicks in.

Mum and Dad, as I called them and think of them, had no children of their own. Someone regularly got sent down to keep the old man and the old lady company. And we were the last of that lot.

We grew up on Mum and Dad’s pensions and my paper round and my milk run and whatever we could do in the holidays. I was working in the freezing works by the time I was 14. And that was normal to us.

I had no idea I was poor until I got a scholarship to go to Lindisfarne College in Hastings, which is a decile 10 school, and got surrounded by wealth. And realised, actually, that I was as poor as a church mouse.

There was a very small group of Māori boys. All of us Te Whaiti-nui-a-Toi scholars. And it was expected that we’d go on to do something else in education. And I did.

I heard that you were a bit of a bookie at school. Can you confirm or deny that?

Yes. I made a mouse racing track and bred half a dozen mice. And then I would get the boys to bet on which mouse got to the end and it was actually fun and quite lucrative.

As for sport? Useless, but with a big mouth. I was really argumentative as a kid. I liked to argue.

Against your parents? How did that go down?

Never argue against the parents. Strategically unwise. Two things you couldn’t do was answer back or not finish your kai.

I also heard that your brother was in the Mob. It’s not unusual for families to have some go one way and some go the other way. How do you explain that?

Can I say he was a very successful mobster? He had the menace tattooed across his forehead and, you know, he was a big, hulking guy. He had a lot of mana in Hastings.

But, to us, he was a gentle, loving, loyal brother, and never anything else. He was well-raised, well-loved, and doted on, in fact. He was a talented man.

But you know what I think was the biggest problem for him? He was big and black. Very dark and very big, and that put him in the stereotype, and the system treated him that way. So, he was an unskilled worker — he was a freezing worker, a fencer, and all that sort of thing — and eventually got involved in the Mob. And that was that.

Did he give you a bit of cheek when he found out what you were studying?

I told him that I was going to go to law school. He didn’t look very happy, and he said: “Are you gonna be a fucking pig?” He didn’t know the difference between law school and police school.

I said: “No, I’m going to be a lawyer, not a policeman.” And he was happy at that.

And when I started working at Kensington Swan, he came and visited me. Walked past the reception to the lift. By the time he got to the litigation floor, they’d called the police. And people were just freaking out. I said: “It’s okay, he’s my brother. It’s fine.”

What I loved was he was proud. He said to me: “I’m really proud. You’ve done this.”

He died quite a long time ago. The lifestyle was too hard on him, and it was really hard on us when he passed away. Really hard. We still talk about him and it would be 25 years ago now. We still miss him.

What inspired you to write Maranga Ake Ai?

It was the ‘80s and te ao Māori was like a big taniwha waking up from a slumber. There’s nothing special about the words, but it was the time. It was capturing the zeitgeist in the Māori world at that time.

You were kind of almost railing against the system with that song, eh? Now you’re a knight and a judge. How do you reconcile those two things?

Yes. Well, you can’t really. It’s not straightforward. Because on the one hand, you’re saying: “How much longer must we keep on talking and all of that, a million miles already and we still go walking.” And on the other hand, you’re operating within the lines and doing what you can within the lines.

But, to me, it’s the same project. There’s that great kōrero of Te Kooti: “Ka kuhu au ki te ture, ka mātua au i te pani. I seek refuge in the law, for it is a parent of the oppressed.” And what he was saying, I think, was that war can’t work for us — the law must.

From that time on, I’ve kind of devoted myself to making good on what Te Kooti said.

Why did you take your investiture to the marae?

The first reason was that Dame Patsy Reddy had been a Crown negotiator in the Ngāti Pukenga claims in Tauranga. And she had negotiated against my cousins. And so she saw it as a kind of closing of the circle. If the settling of the claim was an expression of hope, then coming here and doing the investiture was a way of capping that off.

The second thing, and more importantly, was that the investiture and the knighthood, in my view, is not at all about me. In fact, to be perfectly honest, knighthoods aren’t really my thing.

But my people said to me: “This isn’t about you. This is about us. This is about us having an opportunity to feel pride in what we’ve produced and who we are.” And what can you say to that?

That’s interesting, though, because it’s like the ultimate tohu of the Crown, isn’t it?

Exactly. When I got appointed to the Supreme Court, people were happy and so on — but it was the knighthood my relations really sparked off. This tohu was a tohu for my iwi and for my father and my hapū, and I was simply the bread board on which that got dished out. And I’m cool with that.

What did you enjoy most about the investiture weekend?

The first is singing Maranga with you. I really enjoyed that.

Your sister Tania said you don’t often sing it although you get called upon to sing it. Why is that?

I don’t want to be the sad old bugger that gets trotted out to sing a song from a generation ago. I don’t want to be that guy.

But the coolest thing of all was watching the effect that the weekend had on the Manaia people and Ngāti Pukenga, because it was profound. You had Supreme Court judges, Court of Appeal judges, High Court judges, the chief District Court judge, and a whole pile of Māori judges from all the courts rubbing shoulders with my relations, many of whom have been clients of those processes.

And that was cool. Here were people who are quite important influences on their lives, people who have control over their lives, people who they’ve butted up against one way or another. And many of these people were telling them that they had mana, that they were important, that this place they were in is a special place. Telling them that they could feel the aroha, the mana, that they loved the kai — all of that sort of thing.

There were indeed a lot of Māori judges and lawyers present. Is it possible to decolonise the system by browning it up?

No, but it helps. The system unquestionably requires more diversity, not just Māori, but more generally in our community.

I remember when I came out of law school or even during it, I felt ripped off when I understood how the law was used throughout colonisation. How did you work out in your mind that you’re best placed to go inside it?

I think because, if the law is a tool of colonisation, and it most certainly was and is, then it is also the tool of decolonisation. And that really is the phase we are in, not just as Māori but as a whole country.

I joined the band Aotearoa after you left and went to overseas. What did you learn when you were in Canada?

I was there when Delmaguukw, a big aboriginal case, went all the way to the Canadian Supreme Court. It started in the Vancouver High Court when I was there. And I participated in a couple of the strategic meetings of the plaintiffs. I watched strategic litigation being developed and built.

In Aotearoa in 1986, if you wanted to do legal work affecting the wider Māori struggle, you either worked for Māori Affairs or you were an academic, because the iwi didn’t have any money and neither did anyone else. What I discovered over there was that you could be a lawyer in private practice working directly for iwi and hapū and make a living doing it.

When I came back, I went straight into private practice to learn how to litigate because I’d seen the power of litigation as a tool of social and, potentially, constitutional change.

What I like about litigation as opposed to negotiation is that litigation requires you to argue your case by reference to principles. Negotiation doesn’t necessarily have principles at its base. Negotiation is about the achievable, the doable, the acceptable. Litigation is about principle.

(Before Joe sat on the Waitangi Tribunal, he was appearing before it representing claimants. His first such case was with Te Roroa from around the Waipoua forest. I found this out when I came across a photo of Joe with Manos and Alex Nathan while working on The Negotiators. In 2004, Joe became the chair of the Tribunal.)

Was it challenging to hear iwi and claimants come in to speak about the historical losses?

I heard some of the most amazingly painful and difficult and wonderful stories of loss. Although iwi focused on what had been lost, the claims themselves were held on marae like this one and ended up always being a celebration of survival.

Every Treaty claim I ever acted on as a lawyer or presided over as a judge ended on a high note in terms of the hearings. Every one of them ended full of hope for this time being an inflection point, a time of change.

Truth and reconciliation in Aotearoa was never self-pitying. It was self-righteous and self-empowering.

Was it challenging that the Tribunal could only make recommendations to the Crown as opposed to forcing the Crown to do anything?

No. Actually, yes and no. Because Treaty claims aren’t like court cases where you award damages. In fact, if it had been like that, it would have been a disaster. Because what really needed to happen, and actually what did happen, was the leaders of both sides needed to get together to try and construct a restorative package.

It is much better that an overall comprehensive settlement package is negotiated rather than imposed, because the Tribunal might be cool but it has no idea about the complexities and dimensions of reconstructing an iwi infrastructure.

I am very comfortable with the idea that, with modern policy claims, the Tribunal’s power should be recommendatory only.

Government is an extraordinarily complex animal. And it’s one thing for adjudicators like the multidisciplinary Waitangi Tribunal to express principles. It’s another thing entirely to say: “Now this is how you do it.”

The bureaucracy is trained and skilled at doing that, and I don’t expect that the Tribunal would be able to do a better job because it simply doesn’t have the expertise on the panel. Making law and making policy is really, really hard. Much harder than people realise.

The second thing is the tribunal does have compulsory powers under the State-Owned Enterprises Act, the Education Act, and a couple of other Acts. And it has recently proposed to exercise that power, and those things are before the courts.

So it’s not true to say that the Tribunal in historical claims had no power other than recommendatory. But it hardly ever exercised it until very recently — and I think mostly because the construction of restoration packages is really complex.

Do you think, though, that law and justice are necessarily one and the same thing?

Oh, I don’t think they’re one and the same thing. Law struggles to be just and justice struggles to find its place in law. That’s the human nature of this beast. Always has been. And the job of the legislator and the adjudicator is to attempt to find the balance there.

I guess one of the big challenges is the justice system is built on a system that’s come from the Crown, that represents the queen, the precedents in case law come from there, and the judges are her majesty’s judges. How can we go beyond changing inside the system to completely transforming it?

You’re right the judges are the queen’s judges and the laws are often English laws. But the queen isn’t necessarily a Pākehā and the laws aren’t necessarily English. In a number of areas, they haven’t been English for a generation. In environmental, family, intellectual, and property law now, tikanga speaks as a result of legislative changes.

And then, in more recent cases — Takamore and in the Ngāti Whatua decision of the Supreme Court of a few years ago — the judges are essentially saying the same thing as a broad aspect of what we would call the common law, with or without legislation.

So, we are witnessing a relatively glacial change in the approach, both of legislators and of judges to the nature of our law.

And if you look at the cabinet, for example, it’s 30 percent Māori. If you look at the parliament, it’s 20 percent Māori. Which is larger than our population.

Those Māori struggle in there, though, because they’re a minority inside the Machine itself.

Of course they do. No one said this was going to be easy. But if you had told me, Joe Williams, circa 1983 or ‘84, whenever Maranga was written, that this would be the state of our law, that our cabinet would be 30 percent Māori, our parliament would be 20 percent Māori, that we’d have more than 20 Māori judges including a Supreme Court judge, a Court of Appeal judge, a High Court judge, and 15 District Court judges, I would’ve said: “I don’t believe you.”

This is a multi-generational game that we’re in. If colonisation took four or five generations to work, then decolonisation is going to take at least as long.

Are you an optimistic type?

I think you have to look for the signs to see where this is going. I don’t think that’s optimism. I think that’s realism. Stuff is changing. I’m having conversations with my judicial colleagues about the place of tikanga in our law that were unimaginable a decade ago, and they are not seen as crazy conversations.

I have run tikanga courses for judges. Three days on the marae where we teach them about take tūpuna, take raupatu, whanaungatanga, kaitiakitanga, utu, mana, kaitiakitanga. We get 30 or 40 judges every year coming to those.

And you can see what they learn coming to be expressed in judgments.

(In 2008, Joe was made a High Court judge. Māori are seven times more likely to be incarcerated than non-Māori. But Joe reckons the numbers don’t tell the whole story.)

Māori men in particular are still seven times more likely to be incarcerated than non-Māori. But if you look closely at the numbers, you can see that change has happened. So, if you look at those born after 1990 who are 15-year-olds by 2005, the incarceration rate for that group falls off a cliff. And no one seems to know that. It absolutely falls off a cliff.

That’s kōhanga reo, kura, wānanga. That’s mana Māori. That’s Maranga, right? And what’s driving — primarily, it seems to me — the high level of incarceration, is our generation getting re-imprisoned. Because their children are not. They’re being diverted.

There had never been a bigger group of young Māori males than was the case from the 1960s through to the 1970s — the boomers represented a record number. Now, seven percent of them went to boys’ homes. And 85 percent of those who went to boys homes? They went to borstal and then to jail. Direct connection.

In comes Puao-te-Ata-tu in 1988. And the removal of Māori boys particularly (there are girls, too) — they fall off a cliff because of that report. And the result is that generation don’t go to jail like their fathers, and actually some of their mothers, did. But their fathers go back and back and back, and too many of them are still in.

The big challenge is always: what’s the circuit breaker? Because the statistics for Māori across everything are still incredibly, inequitably negative or disproportionate, right?

There isn’t a single circuit breaker. It’s a very, very complex process we’ve been engaged in since the 1980s. You’re right that the asymmetry and incarceration of Māori people is appalling. And the asymmetry in the removal of Māori children is appalling.

There are social reasons for that and institutional reasons for that. There are legal reasons for that and non-legal reasons for that.

The Treaty settlement process has gained extraordinary momentum. We’ve done it faster than any other indigenous people in the world, which ironically reflects our level of cohesion by comparison to others. We can bring deals to the table which other nations often find difficult. And what that’s done is tool iwi up to engage in this aspect that we’ve been talking about.

That’s why Heemi Taumaunu’s Te Ao Mārama proposal has lots of iwi takers because iwi now have the resources. They don’t actually need the permission of the Crown to engage in these processes because they have their own resources.

What they want to do is partner with the Crown in order to leverage their resources so that they are — and this has got to be the point — centrally relevant to the lives of their people, particularly the most vulnerable.

I’ve had a lot of the conversations with people who’ve said the biggest problem is still the Crown deciding who it will engage with, on what terms, and on what issues.

Well, it’s true that if you’re going to have a partnership with the Crown, then both, just like a marriage, have to agree.

You know, there are a number of areas where iwi aren’t interested. Some iwi say: “Look. That dysfunction you’re seeing over there? You created that. You fix it.” And okay, that’s their call.

My view is that the future for iwi is being relevant to their people by investing and interfering in their lives.

Do you think iwi are meant to pick up all the slack that the Crown has created?

If they don’t, then they’ve ceded that ground to the Crown. If they’re not the solution, someone else is going to be.

The expectation will be the Crown should “devolve” some of the resources.

That’s right. What the legislation is saying is: we want partnerships. You read the Oranga Tamariki Act. Partnerships where we want them are compulsory. And they have to report to parliament, and the minister has to respond to iwi who put their hand up and say: “We want a partnership.”

Te Ao Marama, the model that the District Court is rolling out, is doing the same thing.

There’s no lack of will within what used to be the English system to engage. None at all.

Obviously, there’s going to need to be some re-education around what power sharing really looks like because bureaucrats are bureaucrats. They’re not used to this. They’re going to need to be educated.

On the other hand, iwi who are used to delivering on contracts in the social services area are also going to have to step up and say: “I’m not a contractee anymore. I’m a partner. And we will build this together. I require you to build this together with me.”

Both sides have to decolonise their minds because both sides are colonised. But both sides are saying: “We want to do it a different way.” It’s just no longer right to say evil nasty Crown, good angel iwi. It’s not like that at all.

Moana Jackson said to me in a recent interview that decarceration is impossible without a conversation around decolonisation. What do you think about that?

Well, I think that’s dead right, but that’s the conversation we’re actually having. No doubt about that in my mind. We are having a decolonisation conversation. We’ve been having it for a generation and it’s gathering momentum now.

I want to share one story about our local school as an example. In my younger days, parents shipped kids out from what was Manaia Native School to Coromandel Area School and other schools because of the problems at that school. Now it’s Te Wharekura o Manaia, and people bus in from surrounding communities.

It’s immersion, of course, all the way through to Year 13. It has produced vets, doctors, lawyers, builders, mechanics and farmers. As far as I’m aware, it has not yet produced a single prisoner.

The causal connection between kura, kōhanga, wānanga and all of that, and the fall-off in Māori incarceration and Māori removals is, in my view, direct. We know we can make this work because we actually have.

(The word “partnership” doesn’t appear in any version of the Treaty, yet the Court of Appeal in 1988 identified it as a key “principle”. Talk of principles, as opposed to the actual articles, provoked a strong debate at the time.)

It’s unrealistic to imagine that our ancestors would have handed over power to a small group of immigrants, right? 

They didn’t.

There’s been criticism that the “principles” of the Treaty are a rewrite of the Treaty to consolidate the power of the Crown.

The first reason why I don’t have too much of a problem with the idea of principles is this. To our people in 1840, the idea of a text-related contractual relationship was utterly foreign. For them then, as now, the transaction was relational. It was all about relationships.

And what they wanted was a mutually sustaining relationship where they kept their mana and got all the advantages of the Pākehā world. There were considerable advantages they already knew about, in return for letting Pākehā come. And we wanted it to enhance our mana and enhance theirs. And we usually gave effect to that by swapping DNA. Almost always.

In my view, the concept of partnership is such a powerful concept. I know not everyone agrees with me, but that’s the relationship. That word is the essence of an equal, horizontal, as opposed to vertical, relationship.

It hasn’t always been particularly good because, although we’ve talked as if it’s horizontal, as the Waitangi Tribunal has repeatedly said, it’s usually ended up being vertical — often as a contractual kind of relationship.

But, as far as I can see, that’s changing, and it’s changing quite rapidly now.

Iwi are starting to impose requirements on a Crown that needs the partnership as much as the iwi do, to solve problems that the Crown no longer has the ability to solve.

The mutuality of advantage is exactly what the Treaty was all about. Exactly. But it takes imagination and courage and risk. You always risk, in a partnership, losing something of yourself in it. You always risk the other side of the partnership not being straight up with you and running off with the goods.

When has the Crown demonstrated that principle of partnership in a very real way? When we talk about partnership, we don’t see that expressed at a constitutional and a government level.

Well, that’s a conversation for someone else, not me. I don’t get to write constitutions as politicians do, but if you say that the partnership language has been used to deliver subordination relationships — that’s not a problem with partnership. It’s a problem with how you deliver it.

And that’s why it’s wrong to say partnership hasn’t worked in the past so we should walk away.

No. Let’s try something different.

No. Let’s try and get it right. Let’s try and get it right. And that’s the process we’re in.

When I say the name Moana Jackson, what does that conjure up for you?

I just read a chapter Moana wrote that I thought was outstanding. He suggests that “decolonisation” isn’t the right word to use — the right word is “restoration”.

Moana is the guy who’s been the navigator. He always keeps the path in mind. He sees the destination and never diverts, so he’s the equivalent of Tamatea-Ariki-Nui (captain, navigator) and Ruawharo (tohunga) on his waka.

Moana has always been unbudgeable about the principles he believes in and considers to be the answer to our predicament. And there’s no point in debating those things with him because I’ve known him for a very long time now and he hasn’t shifted from those basic principles. And he has always — carefully, politely, and quietly — smacked you in the face with those principles.

There’s no more admirable person in my opinion in this discourse because of his consistency and aroha for the kaupapa.

Has his thinking challenged your own at times?

Yes, because we have played different roles. He’s been a warrior. I’ve been the practitioner. I like to think that I have to deal with the realities and he doesn’t. To some extent, that’s true — and I’m going to cling to that. But the danger for people like me is that, in dealing with the realities day by day, you lose sight of the path.

It is very, very, very, very easy to do. To convince yourself that what you’re doing is okay. If you had the objectivity of the warrior philosopher, you would know it wasn’t.

I’ve often relied on him to light a path that I’ve risked straying from.

Moana Maniapoto interviewed Justice Sir Joe Williams in April for Te Ao with Moana, which screens on Māori Television every Monday at 8pm. This transcript of the full interview has been edited for length and clarity.

© E-Tangata, 2021