I’ve started the antiracist reading nook back up – as a shared reading space for Matike Mai Aotearoa – the 2016 report of the constitutional transformation working group. I do this because now that it’s being discussed more broadly as a part of constitutional transformation discussions (yay!), there’s a lot of commentary about it, coming from those who have clearly not READ it (oh.)
So we will approach it in 4 parts. The first part will go up today and then 8pm each night I will do a live broadcast on both my Facebook and my Koekoeā tiktok.
Last night I did the introductory session announcing the four part series, talking about constitutional transformation in general, and asking if people have specific questions I can address in the readings. I have a wonderful friend who has also taken notes AND factchecked me (thankyou friend!), and provided the notes back for those who could not make it, so here are the notes from last night’s session:
Tina Ngata on Matike Mai
Tina Ngata revived her reading nook to work through Matike Mai Aotearoa, the 2016 report of the Independent Working Group on Constitutional Transformation, because she had watched candidates and commentators discuss it in this election campaign without having read it. This session was the introduction. Four more will follow, one for each part of the report.
Why she went live
Ngata opened by naming the problem that pushed her back to the camera. Matike Mai is getting traction in this election cycle, which she welcomed, though she had watched interviews and read comments from candidates who plainly had not opened the report. She declined to name them. What gave them away, she said, was the claim that Matike Mai is an academic document, a description she heard from several commentators and candidates and treated as a reliable tell of someone who has not read it.
It is not an academic report, and it was never meant to be. It was written for people rather than for a university or for scholars, in plain and accessible language, and a decent portion of several of its parts consists of quotations from the people who attended the hui. Her point was not that the report is simple. It is that the difficulty is manufactured. Making justice sound complicated, she argued, is one of the oldest habits of the coloniser, because a complex problem excuses an unjust answer. Her own compression of the matter ran to two sentences. You stole political power. It is time to give it back.
This session was introductory. The reading itself starts with part one, the nature of constitutions, and runs across four sessions to match the four parts of the report. She was explicit that she would summarise rather than read line by line, and that she would flag the passages that mattered to her. She also set homework, which is to read the thing.
Tikanga is law, spelt the same way
The spine of the talk was a claim about vocabulary. Ngata objects to the habit of writing tikanga as lore and Western law as law, because the distinction is doing quiet work. It implies that tikanga is less important, less applicable and less enforceable. Tikanga is law, she said, and it should be enforceable as law.
She grounded that in the word itself. The root of tikanga is tika, meaning correct or right, and tikanga is the correct way of doing things – correct because it has been tried and tested over generations until it worked. Legal systems here emerge out of the whenua rather than arriving on a ship. Those who came on waka had to test again what would hold in this place, because what had worked in Hawaiki did not simply transfer, and through repeated trial and error people worked out what was tika for here. Tikanga, on her account, is a legal system that grows out of a relationship to particular lands and particular waters.
From there she made the argument that carries the rest of the evening. If colonisation interrupted te reo, and interrupted education, and interrupted land-based and moana-based economies, and all of that is now openly discussed, then it also interrupted lawmaking systems and systems of governance – and that interruption has had almost none of the same reckoning. She placed this alongside the constitutional claim currently live before the Waitangi Tribunal.
The practices that made lawmaking possible are themselves taonga in her framing, and she listed them rather than abstracting them: karakia, waiata, pūrākau and the story-making traditions, mahi toi, mātauranga taiao, the disciplines of deliberating for a collective that includes past and future generations. Reo is a taonga. Mātauranga is a taonga. So, she argued, are the ways of deliberating and reaching a decision, and the right to retain them did not evaporate on the arrival of a colonial vessel.
Her contrast was the debating chamber. Members can say things that are racially offensive or outlandish and face no accountability because privilege protects them, and the thin set of rules that does exist sits with the Speaker, who, as she put it, has repeatedly picked and chosen how to apply them. Tikanga, practised properly, gives better ways of bridging difference and making a point without the nastiness.
Constitutions existed here before 1840
Asked repeatedly in the chat what a constitution actually is, Ngata gave a working definition and then applied it. A constitution answers who gets to make laws, how those laws will be administered, how people come together to deliberate and decide, and where the boundaries of that authority lie. On that test, she said, hapū had constitutions, because they had answers to every one of those questions. The kawa of a marae is a constitution in exactly this sense.
Boundaries were part of it. Tīpuna knew which rules applied on this side of the awa and which applied once you crossed it, and knew that many of the rules on the other side would be the same with a few deliberate differences. Relationships across Te Moana-nui-a-Kiwa were part of it too. Treaty-making did not begin in 1840, she said. Māori were making treaties, running hohou te rongo processes and setting standards for how relationships with other peoples were formed long before that, which makes it a colonial fiction to claim that rational decision-making, lawmaking and foreign policy arrived in 1769.
Lawmaking and governance, in her phrasing, did not arrive here by boat, and nobody was sitting on a beach waiting to be gifted a legal system.
How the Crown came to hold the pen
Ngata walked the audience through the sequence as she reads it. He Whakaputanga o te Rangatiratanga o Nu Tireni, the 1835 Declaration of Independence, states who may make law on this land, and the mechanism it sets out is devolution rather than surrender. If anyone else is to make laws here, rangatira will say so and will be precise about the constraints. That is what tino rangatiratanga means, she argued, and it does not get diluted by the act of devolving a narrow power. Queen Victoria was granted a limited capacity to legislate for settlers who were not listening to tikanga, on the reasoning that they might at least listen to their own monarch. Those settlers, she added, arrived carrying three centuries of instruction that Māori could not make law because Māori were not rational, were savages, were natives, were part of nature and therefore not quite human.
The limited grant was then taken and run with. By the New Zealand Constitution Act 1852, the Crown was asserting authority over Te Waipounamu on the basis of discovery, which discovered nothing, and over the North Island on the basis of cession, which the Waitangi Tribunal has since found did not happen. Her conclusion follows directly. There is no legitimate basis for the 1852 Act, or for the government it formed, or for the constitutional statutes that followed it.
She traced the case law alongside it. Wi Parata v Bishop of Wellington, decided in 1877, imported the doctrine of discovery into New Zealand law, and was then used as precedent across multiple cases to extinguish native title. That line was broken by the Ngāti Apa decision, which she called pivotal and which she dated to 2004, though the Court of Appeal judgment came down in June 2003 and the Foreshore and Seabed Act followed in 2004.
Her illustration of how seriously the Crown took its founding document was its physical treatment. Te Tiriti was left in a trunk and damaged by rats and water, and she placed it in the basement of the Dominion Museum until the 1960s or 1970s, with no legislation giving it any standing until 1975. Her question was rhetorical and it landed. If it mattered enough to form a government on, it should matter enough to honour.
Twenty years of being told the same thing
The section of the talk that will travel furthest is her account of the international record, because it shifts the argument from what Māori want to what the Crown has already signed up to. Her point is sharp. It is bad enough that the Crown does not respect tikanga or Māori constitutional authority. It does not respect its own human rights standards either.
After the Foreshore and Seabed Act, Māori took the matter to the United Nations. She named Moana Jackson, Annette Sykes and Dayle Takitimu amongst those who did so, and they asked for a special procedure visit. Rodolfo Stavenhagen, then Special Rapporteur on the human rights and fundamental freedoms of indigenous people, visited in November 2005 and reported in March 2006. His recommendation, as Ngata reads it, was not that New Zealand hold a conversation about a constitution. It was that New Zealand formalise its constitution and place Te Tiriti at the centre of it. She dated this to 2005, which is when the visit happened, and the language of the report is stronger than a suggestion.
James Anaya followed. Ngata placed his report in 2007; the visit was in July 2010 and the report came to the Human Rights Council in 2011, and the substance is as she described it, that at a minimum the Crown should enter into a discussion about constitutional arrangements and about securing Te Tiriti within the domestic legal system so that it is not left to political discretion.
The treaty bodies then took it up in turn. The Committee on the Elimination of Racial Discrimination framed it as a question of racism, telling New Zealand that addressing racism means addressing the constitutional and political status of Te Tiriti. The Committee on Economic, Social and Cultural Rights said something similar. So did the Committee on the Rights of the Child, on constitutional protection for Te Tiriti. Ngata ran the years out loud: 2014, 2017, 2020, 2023, each carrying its own round of the same recommendation. She was raising it herself across those years, she noted, back when Meka Whaitiri still held Ikaroa-Rāwhiti for Labour.
A viewer asked whether anyone ever listens to the UN. She thought it a fair question and answered it in two parts. Some things do move because of treaty body pressure rather than because of declarations, and the constitutional review the John Key government eventually ran was partly a product of it, light on Te Tiriti though it was. Beyond that, the failure is worth naming for its own sake. They fail by our standards, she said, and it matters to point out that they also fail by their own.
Underneath all of it sits the right to self-determination in the UN Charter, and the recognition that indigenous peoples retain constitutional authority and the right to make law on their own lands. That right does not lapse, on her reading, because colonisers arrive.
How Matike Mai was made
Ngata was careful about provenance, and in one respect unusually frank. The National Iwi Chairs Forum, which pushed the kaupapa forward, took shape in a period when National was in government and was in part a construct of that government’s preference for how it engaged with different iwi and hapū. Many have since continued to gather under it voluntarily, under Labour as well, but she wanted the origin on the record rather than smoothed over.
The Forum resolved in 2010 that a working group examine constitutional justice centred on Te Tiriti. Pou Tikanga, led by Professor Margaret Mutu, carried it. Mutu chaired the working group and Moana Jackson convened it, with Veronica Tāwhai leading the rangatahi cohort. They planned around thirty hui. Demand overtook the plan, as Ngata put it in an image worth keeping, the way a slice of bread ends up feeding the whole iwi. The final count was 252 hui held between 2012 and 2015, with a further 70 rangatahi wānanga run by Tāwhai’s rōpū. Written submissions, focus groups and interviews with individual experts fed in alongside. The report, He Whakaaro Here Whakaumu Mō Aotearoa, was published on Waitangi Day 2016.
That is a rigorous process by any measure, and she said so. Her qualification matters at least as much. This is the beginning of the conversation rather than the whole of it, and no amount of fear-feeding changes that.
What she answered from the chat
One viewer wanted teeth. Ngata agreed without hesitation, and said that is precisely what constitutional transformation is for: making Te Tiriti enforceable, making tikanga enforceable, and building a space in which people can deliberate in their own reo, under their own values, about what enforcement should look like. European law was allowed to evolve into something fit for its own purpose in its own place, which is what parliamentary systems are for. The right to deliberate over tikanga, and to keep it fit for purpose for the conditions people are living in now, was never lost either. New problems arrive – she named the climate crisis, which was not in play before 1840 and is very much in play now – and deciding how tikanga meets them is a Māori decision, not anybody else’s. Colonial interference has fallen heavily on the resourcing of that deliberation rather than on its legitimacy.
Asked whether He Whakaputanga holds up in court, she reframed the question before answering it. Which court. Western legal systems derive from a rationalism built on the premise that only Europeans are rational and therefore only European law counts, which is the foundation of treating tikanga as something other than law. Under tikanga, He Whakaputanga holds. Whether it holds elsewhere is answered by asking why Te Tiriti itself was left to rot, and by the fact that nothing gave it legal standing until 1975. Then she applied her own definition. A constitutional document says who makes law, how law is administered, how people deliberate, and where the boundaries lie. He Whakaputanga contains all four, which makes it constitutional by definition. Te Tiriti, by the same method, meets the definition of a treaty. Hobson’s document, long circulated as the English version, does not.
Someone asked whether voting, petitions and protest help. Her answer was qualified rather than dismissive. Those things work when they are well organised, though the most valuable thing anyone can do right now is be informed about what they are standing up for. Read the report. Being able to hold a conversation with a sceptic, and to debate it, beats adding a name to a list, and she framed it partly as a matter of looking after your own energy.
Another viewer, Miharu, asked that the kaupapa be tied to what is happening now, and Ngata thought it close to self-evident. Look at how laws attacking Te Tiriti are being made today. Under a Tiriti-centred constitution, with tikanga sitting at its heart in an enforceable way, those laws could not be made, and the abuses being visited on the taiao would not be possible either.
She interrupted herself at one point to say she is not a constitutional lawyer. She is someone who believes in the kaupapa and in the legacy of those who carried it, Moana Jackson amongst them, and not because it was Moana Jackson but because the kōrero is tika and pono.
2040, and the argument about waiting
Matike Mai describes itself as a 170-year-old conversation. Ngata updated the arithmetic on air. Counting from 1840, it is now 186 years old, and 2040 will mark two centuries, which is the date the report floats as a plausible moment for a constitution that genuinely honours Te Tiriti and protects it from being mucked around with by successive colonial governments. Nothing stops it happening sooner. Even taking 2040 at face value, that is fourteen years away, which she pointed out is only a few elections. So the work needs to start.
She was insistent that this is a journey rather than an event. Not a magical night on which one constitution is wiped and another installed, but a kaupapa, a wānanga, a hīkoi that people travel together across a couple of decades and that may peak in 2040 without finishing there. The questions still to be worked through are substantial and she listed them without pretending they are settled. Te Tiriti was signed with hapū and the current government’s focus is on iwi, so the discussion between iwi and hapū has to happen without becoming a stoush. What constitutional transformation means for migrant communities, and for tauiwi who are not Pākehā, and for Pākehā communities, is live work that people are already doing well. Then there are the courts, foreign policy and borders, and which international and indigenous relationships the country holds.
On whether any of this is radical, she was flat. Complete constitutional rewrites have happened roughly 1,500 times around the world since the late 1800s, on her count. It is a big task if you want to do it properly. It is not an exotic one.
Her sharpest disagreement was with people who broadly share her politics. She said plainly that she believes in the potential of the Greens, and that she has heard figures from the Greens and from the Opportunities Party argue that constitutional transformation must wait until other things are in place. The version she has heard most often is that money must come out of politics first, or the millionaires will shut the conversation down. She does not follow the logic. If millionaires are powerful enough to block constitutional transformation, they are certainly powerful enough to block their own money being removed from politics. And the record cuts the other way in any case: constitutional transformation discussions did proceed under a National government, which was also content to let republican conversations run.
On Te Pāti Māori’s manifesto commitment to entrenchment, her reading was that its value lies in an enumerated funding commitment for these conversations across the motu, for every hapū and community, rather than in any claim to author the constitution itself. They have been clear that authorship is not their role, while insisting the resourcing exists so that communities can decide who holds that role. Māori have been crafting diamonds out of coal for a very long time, she said, and can move things without money. That is not an argument for continuing to withhold it.
The last thread she pulled concerned the Westminster system itself. It emerged, she argued, from a domestic European problem, as monarchs and lords faced repeated uprisings from a peasantry insisting it had rights. Out of that came a house for commoners alongside the retained house of lords, which makes the system classist at its foundation and built for conditions on the other side of the planet. The same problem was managed by exporting the surplus population to penal colonies and to colonised land sold as the chance to own property in a way that was impossible at home, which means the arrival of settler colonisers was itself part of the Westminster settlement. Whether it even works over there she declined to concede. That such a system would suit this land better than one grown out of it she called preposterous.
Which is why she treats this as a kaupapa matua rather than one issue on a list. She said she gets disappointed when constitutional transformation is filed alongside the taiao, freshwater rights or hyperincarceration as a parallel concern. Get this right, on her argument, and those fall into place, because the settings that determine who decides and how they decide would themselves be just. Problems would remain. The means of confronting them would not be borrowed.
A note on the te reo Māori in this record
This account comes from an automatic transcript, and automatic transcription handles te reo Māori badly. Names, places and terms arrived mangled: Matike Mai came through as Nate Mai and Natiki Mai, Te Waipounamu as Te Waiponamu, Te Moana-nui-a-Kiwa as several different things, whenua as fenua throughout, and taonga as taunga. Those have been restored to standard orthography with macrons, and personal names have been checked against the published record, which is how Veronica Tāwhai, Dayle Takitimu and Meka Whaitiri appear here in the forms they use themselves. Where a word was too garbled to recover with confidence it has been left out rather than guessed at.
The glossary below covers the terms used above, for anyone circulating this to readers who do not have te reo.
Term
Meaning as used in this report
Aotearoa
New Zealand
awa
River
hapū
Kinship grouping, the signatories to Te Tiriti
Hawaiki
The homeland from which voyaging ancestors came
He Whakaputanga o te Rangatiratanga o Nu Tireni
The 1835 Declaration of Independence. Spellings of the last two words vary, including Nu Tirene and Niu Tireni
He Whakaaro Here Whakaumu Mō Aotearoa
The title of the 2016 Matike Mai report
hīkoi
A walk or march, and by extension a journey undertaken together
hohou te rongo
Peacemaking, the formal process of settling conflict
hui
A gathering or meeting
iwi
Larger tribal grouping
karakia
Incantation, prayer, ritual chant
kaupapa
Purpose, cause, the matter being worked on
kaupapa matua
The primary or governing kaupapa
kawa
The protocols of a marae, its operating rules
kōrero
Talk, discussion, the substance of what is said
mahi toi
Artistic practice
marae
Communal meeting grounds and their complex of buildings
mātauranga
Knowledge, a body of knowing
mātauranga taiao
Environmental knowledge
motu
The country, the island, used for the nation as a whole
pono
True, genuine
Pou Tikanga
The tikanga arm of the National Iwi Chairs Forum
pūrākau
Story, the narrative tradition that carries knowledge
rangatahi
Younger generation
rangatira
Chief, leader
reo
Language; te reo Māori
rōpū
Group, committee
taiao
The natural world, the environment
taonga
Treasure, something of value held and passed on
tauiwi
Non-Māori, people who came later
Te Moana-nui-a-Kiwa
The Pacific Ocean
Te Tiriti o Waitangi
The 1840 treaty, in its Māori text
Te Waipounamu
The South Island
tika
Correct, right, just
tikanga
Customary law and practice; the correct way of doing things
tino rangatiratanga
Paramount authority, self-determination
tīpuna
Ancestors; also tūpuna
waiata
Song
waka
Canoe, voyaging vessel
wānanga
A forum for deliberation and learning
whenua
Land, and the placenta, the two senses running together
Sources
The substance of this record comes from the Facebook livestream itself. Where Ngata gave dates and figures from memory, they have been checked against Matike Mai Aotearoa’s own account of the working group, which confirms the 2010 Iwi Chairs Forum mandate, the 252 hui held between 2012 and 2015 and the 70 rangatahi wānanga convened by Veronica Tāwhai; the Network Waitangi Ōtautahi record of the report and its terms of reference; the Stavenhagen mission report, E/CN.4/2006/78/Add.3, from a visit between 16 and 26 November 2005 and published on 13 March 2006; and the Anaya report on the situation of Māori people in New Zealand, A/HRC/18/35/Add.4, from a visit between 18 and 23 July 2010 and published in 2011. The report itself is freely available as a PDF.
