Breaking the law on te reo Māori?
Her Pākehā father wanted her educated in English, her Ma¯ ori mother in te reo. The case went to the High Court, where a judge’s use of the Ma¯ ori Language Act to help determine the girl’s future could now send ripples through New Zealand.
The decision implied ‘‘an overarching obligation on any government decision maker about how they provide for te reo’’, according to public law specialist Baden Vertongen.
That means the Government could be open to legal challenge under the act, if Crown entities do not support the revitalisation of te reo Ma¯ ori.
The Crown has created an obligation for government departments to deliver their services in te reo, says Vertongen. ‘‘It’s tried to give itself a bit of breathing room about how it gets there, by limiting how much of a push they can get, or how much of a challenge people can take. The extent to which they can be pushed to achieve that will be tested at some point.’’
The Press can’t identify the wha¯ nau involved in the case for legal reasons, but one of the concerns raised was what school the child should attend.
She started at a ko¯ hanga reo, then went on to a full immersion kura kaupapa and was proficient in te reo. But when her parents split, they argued about her schooling. Her father felt excluded by the use of te reo Ma¯ ori at the kura. Her mother supported the girl’s schooling.
A Family Court judge ordered the child to attend a religious school with little to no te reo Ma¯ ori education. It was appealed to the High Court, where Justice Hinton moved the girl to another school, where she is being instructed in English and te reo.
‘‘It is perhaps surprising in 2017, especially given the . . . act, that it is not government policy that all primary schools teach te reo as a compulsory subject,’’ Hinton noted in her judgment.
Vertongen says Hinton’s comment shows how the judiciary’s thinking has changed over the past 150 to 170 years. ‘‘We’ve gone from cases in our courts that talk about the Treaty being a legal nullity and Ma¯ ori being savages, to a judge now saying she can’t believe te reo Ma¯ ori is not compulsory in our education system.’’
Although the judge’s statement has some legal standing, it was how she overlaid the 2016 act on to the principles relating to the child’s welfare that has wider implications for not only the justice sector but all government departments, Vertongen says.
‘‘That comment is saying the effect of the Ma¯ ori Language Act is now to create an overarching obligation of any government decision-maker about how they provide for te reo.’’
The Ma¯ ori Language Act 2016 replaced the version that made te reo Ma¯ ori an official language in 1987. The main difference is in the structuring of organisations to support revitalisation and the development of strategies.
But Vertongen warns the issue for the Government is in the guidance for departments of state within the act. Although a clause says the guide doesn’t create a legally enforceable right, he believes it’s still arguable and can be tested.
‘‘There has to be some sort of obligation on departments to provide their services in te reo Ma¯ ori. The legal uncertainty is around what effect that has on Crown agencies now and how you could enforce it if you thought it wasn’t being done properly.’’
Last year, nearly 80 per cent of pupils across all schools did not receive any te reo education.
Vertongen says the Education Ministry could be challenged on how it sets the curriculum. ‘‘They wouldn’t be obliged to make it [te reo] compulsory, but they would be obliged to consider it. You would have to justify why you wouldn’t.’’
Ma¯ ori Development Minister Nanaia Mahuta sighed in frustration when asked about the legal warning. ‘‘If we’re engaging with te reo Ma¯ ori through a legal lens we’ve probably missed the plot.’’
The biggest hurdle the Government faces to making te reo compulsory in schools is having insufficient teachers to provide quality te reo Ma¯ ori education, she says.
‘‘If we take a legal view, look at the legislation and argue the legislation, that’s not making one ounce of difference to te reo Ma¯ ori. Yes, government departments have the opportunity to do more than they’ve ever done before. But let’s map out what that looks like and track, as each department does its bit, what the total benefit can be to see our language flourish in our country.’’
Two new strategies were created in the act, a separate Crown and Ma¯ ori response to te reo Ma¯ ori revitalisation. Te Puni Ko¯ kiri is developing the Crown strategy, the Maihi Karauna. Te Ma¯ta¯wai is the legal entity created to represent Ma¯ori and iwi, and will deliver the Maihi Ma¯ ori component of the act.
Te Ma¯ ta¯ wai chief executive Te Atarangi Whiu agrees there is an obligation on the Crown and agencies to follow through on the intent of the act – revitalisation of te reo. ‘‘This act is groundbreaking,’’ she says. ‘‘Rather than test the legality of the act let’s push boundaries.’’
But Vertongen warns judicial review proceedings could be taken against any Crown entity if it hasn’t considered all of the relevant factors it’s obliged to when deciding how it delivers services in te reo Ma¯ ori.
‘‘I think the pushback you’d get from departments would be, ‘we’re only obliged to do this as far as reasonably practicable’. For example, it’s just not practical for us to have a full immersion prison. But it’s a useful argument to have, because the majority of the prison population is not Pa¯ keha¯ .’’
But Te Taura Whiri i te reo Ma¯ori (Ma¯ori Language Commission) chief executive Ngahiwi Apanui thinks government departments have been proactive.
Over 40 organisations in the past year had been in touch about how to provide te reo services. ‘‘There is nothing in the act that compels government, agencies or organisations to do anything compulsorily for te reo Ma¯ ori. It’s about encouraging.’’