Justice Joe Williams: Kua moe Te Tāwera?

Moana Jackson, who died last Thursday aged 76, was like Te Tāwera, the morning star, writes Supreme Court Justice Sir Joe Williams. “Like Te Tāwera, Moana always rose in roughly the same place and his message was always the same: a new day is coming.”

 

I went to Moana’s tangi on Saturday. It was at Matahiwi marae, not far from Hastings. I was part of an ope of a hundred or more predominantly Māori judges, lawyers and law students from throughout the country.

It was a predictably large tangi, skilfully led by Moana’s hapū — Ngāti Hāwea, Ngāti Hori and Ngāti Kautere — and the wider iwi, his beloved Ngāti Kahungunu, the source of most of the stories he drew on when he taught.

Tūhoe had brought him down from Waimana the day before. They had been joined by Ngāti Porou on the way down. Tainui had gone on before us — it took them two hours to convey the condolences of the king. In our pōwhiri, which followed immediately after, we were joined by Ngāti Whakaue, Ngāti Pikiao, and a police contingent (not on duty) led by Deputy Commissioner Wally Haumaha. We took two and a half hours to complete our tributes — in karanga, haka, whaikōrero and waiata.

By the time we’d moved to the wharekai for a quick meal, the northern tribes, who must have been waiting outside the gate, had come on to deliver their tributes in the beautiful sing-songy way that only Ngāpuhi can.

And so it would continue until Moana’s interment the next day, leaving the home people physically and emotionally exhausted.

Moana knew it would happen this way. But even in death, he insisted on breaking orthodoxies. He had directed that women should be accorded the right to deliver their own tributes — that is, to whaikōrero — on the marae ātea, an area that had been the exclusive preserve of men for a long time, although not as long as many might think.

I am no expert in Ngāti Kahungunu kawa, but I well remember Ruruhira Robin, Moana’s aunt and the grandmother of Meka Whaitiri MP, delivering a beautiful poroporoaki (farewell) to my mother as she lay at Omāhu marae, on the other side of Hastings from Matahiwi marae. This was in the mid 1990s.

Ruruhira stood in front of the whare and farewelled my mother, using a form that was part whaikōrero, part karanga — part oratory, part song. That image of Ngāti Kahungunu mana wāhine has never left me. I don’t know whether it was because of Moana’s mana or this history of female roles on the marae, or both, but Ngāti Kahungunu embraced Moana’s directive with enthusiasm.

The first wahine to speak at the tangi was Kiritapu Allan, the Minister of Conservation. She was followed by many others. There were three from our ope, all of whom spoke eloquently of their experiences of Moana and his support of mana wāhine, and all of whom were supported with waiata sung by men and women together. The world did not end.

Moana was, of course, a high-profile public intellectual, whose writings, lectures, speeches and, well, “talks” had systemic impact. In addition to this public-facing role, his impact at the retail level was massive. He changed the lives of individuals — particularly young Māori — by teaching and caring for them in practical ways.

A friend of mine told me that Moana came to his school and spoke to the senior students about the Treaty and mana Māori. That talk was the inflection point in my friend’s life; he decided to go to law school. He is a judge now.

I have read about kids who were taught by Moana at Wainuiomata High School (he was a qualified lawyer but decided he could have more impact as a secondary school teacher). One such student wrote about how Moana had helped him overcome dyslexia and had gone to his house to help his sister study for her university entrance exams. She got UE.

Another pupil of that generation talked about how Moana, accompanied by a couple of senior students, had taken it upon himself to visit the home of every Māori third former (as Year 9s were then known), to introduce himself and the supports on offer to them.

It was the ‘70s and the school was not comfortable with Moana’s unapologetic focus on the needs of Māori students. Moana didn’t care. He told the school that he was doing this in his own time and without pay, and if they wanted to develop a similar wider programme, then he would very much support that.

I have no way of knowing how many lives he changed in these ways, but I know it was many. Moana wasn’t just a man of ideas. He cared at a personal level, and demonstrated that care with practical acts of self-sacrifice. They must have taken their toll on him.

Moana was best known for his ideas about the relationship between law and colonisation, and the principles upon which decolonisation might finally be brought about. He wrote and spoke extensively on criminal and family justice, on constitutional change, on the Treaty of Waitangi and the Declaration of Independence, and on Indigenous rights in international law.

In each of these subcategories, his ideas were impactful — initially controversial, and then, slowly, feeding into the mainstream.

In his seminal 1988 report, He Whaipaanga Hou, Moana advocated for a separate Māori criminal justice system. This was a position from which he never retreated. Thirty-four years later, that idea has still not come to fruition. Instead, the system itself is Māori-fying. Chief District Court Judge Heemi Taumaunu recently announced the launch of the District Court’s Te Ao Mārama reforms, in which tikanga Māori processes and substantive considerations will be woven into criminal procedure and sentencing.

The reform is broadly supported by government. District Court judges and officials from the Ministry of Justice are currently working together to land the reform. They are engaging with community representatives, including, crucially, iwi, to better connect the court with community resources.

Moana would certainly have said this falls well short of a separate Māori criminal justice system. But even he would accept that this is a significant improvement on the status quo. Before he died, Moana was working on an update of He Whaipaanga Hou, with funding from the Borrin Foundation. I hope his update will still be published. It will help.

It was in the international Indigenous rights arena that Moana became world famous. He had engaged with the UN Working Group on Indigenous Populations from the 1980s. He came to be widely known and respected by Indigenous peoples from around the world, and by senior UN human rights advocates. He was closely involved in the early drafting of the UN’s Declaration on the Rights of Indigenous Peoples (UNDRIP), and he was regularly consulted by Indigenous advocates in relation to their own struggles for recognition.

From my own experience in international fora, I can say that there were two Māori with a truly global profile in the field of Indigenous rights. They were Ngāneko Minhinnick, who passed away five years ago, and Moana Jackson. Moana was seen by Indigenous peoples working at the international level as a leading authority, and rightly so.

But, in my view, Moana’s most impactful work related to his writings and ideas for reform of the constitution of Aotearoa, work that culminated in the Matike Mai inquiry and report, chaired by Professor Margaret Mutu and convened by Moana.

He always believed in the idea of an organic constitution reflecting certain historical realities. First, that there was an independent pre-colonial Aotearoa, in which mana Māori was the law. Second, that British colonisation attempted to dispossess mana Māori of its resource base and to usurp mana Māori with something we might perhaps call mana Kuīni. And third, since mana Kuīni had failed to extinguish mana Māori, the two spheres had now to negotiate proper terms of engagement that would be reflected in a new modern constitutional arrangement.

In this new, organic constitution, the two sides would agree on how to distribute power between the exclusive spheres of mana Māori and mana Kuīni, and how to manage those areas that require some form of shared management.

Moana’s view was that mana Māori was ready to negotiate, but mana Kuīni had yet to get its act together. His model gained wide support among Māori with an interest in the subject. It was simple, historically literate, and inspirational. These elements outweighed competing considerations, such as practicality.

Moana was unfazed by obstacles, including the unlikelihood that mana Kuīni would be the least bit interested in engaging in a process that required it to cede power.

Moana was an idealist who believed in the transformative potential of sound ideas. If the ideas were right, the practical issues would resolve themselves in time. The 34 years since He Whaipaanga Hou suggest he may well have a point.

I have my own perspective on the same issues — that of someone working deep within the entrails of mana Kuīni, a judge required by law to swear fealty to Her Majesty, working in a court system imported almost in its entirety from colonial Britain.

You can imagine that, at times, I found Moana frustrating. I expect the feeling was mutual. For him, the “good enough” was the mortal enemy of the perfect — and he was interested only in the perfect. By contrast, I have spent most of my time in the good enough paddock. So, for me, Moana’s greatest impact was as a constant reminder of the compromises that history and modernity demand — to remind me that they are, in fact, compromises; each one of which must be individually weighed and justified.

Moana was Te Tāwera, the morning star — rising bright in the east just before sunrise, never too far from the position on the horizon at which the sun would eventually appear. Like Te Tāwera, Moana always rose in roughly the same place and his message was always the same: a new day is coming. It still is.

Moe mai e koro e.

 

© E-Tangata, 2022