New Zealand Law Society - Tikanga Māori issues with the proposed End of Life Choice Act 2019

Tikanga Māori issues with the proposed End of Life Choice Act 2019

Edmund Carrucan provides a thought-provoking insight into the End of Life Choice Act as considered from a te ao Māori perspective.

Nā Edmond Carrucan

As someone who is not usually well informed or let alone interested in the politics of New Zealand, it was quite a shock for me when I saw the End of Life Choice Act 2019 had made traction and will now face a referendum.

Initially, I felt an anxiety that I could not explain. Then it came to me all of a sudden. I had very different views that are rooted in Tikanga Māori from my background and upbringing. As a young child, the world ended for me at the fence line of my marae. That is still a personal truth for me. It is a place where I learned that tikanga is a law into itself.

From that vantage point, I indeed saw some tikanga Māori issues with the Act that I thought may not have been canvassed. In doing so, I make two concessions. First, I do not speak for all Māori, nor could I. I am just one Māori Tāne with something to say on this topic. Every iwi and whānau are unique. The narrative surrounding the homogeneity of Māori whakaaro is a myth. Second, there are different understandings of tikanga to each iwi and whānau. The many versions of our pūrākau are evidence of that. The beauty of our worldview being that each iwi and their understandings are both valid and more importantly relevant to the story of who they are and how they think. Having made those key concessions, I will now address what I consider to be possible tikanga Māori issues with the proposed Act. Tikanga is both the original jurisprudence and oldest law of Aotearoa.

Act violates mauri principle

First, the Act violates the mauri principle. This mauri principle is well documented in the writings of experts such as Sir “Sidney” Hirini Moko Mead who has gone to efforts to explain tikanga in a modern world. Many will be familiar with the cry “Tīhei Mauri Ora!” which accompanies a number of whaikōrero throughout Aotearoa. It has certainly accompanied my whaikōrero on occasion. This is the cry of an indigenous people. The cry from Te Marae Ātea o Tūmatauenga. The cry of the high value that tikanga and Māori legal system places on life itself. It is the ultimate recognition of where life really comes from for Māori, namely ngā atua tūturu o te whenua (our traditional gods). Such a principle is violated by the Act permitting the end of a life. That is because everything we do should be to protect and enhance our mauri as living, breathing human beings. To end a life, to choose to destroy the mauri, against that understanding, as the Act intends to, is a violation of the mauri principle.

Second, if we accept that the Act violates the mauri principle, what other principle might best engage with this violation (if the Act is passed). I submit that Tino Rangatiratanga might operate in favour of a person who wants to end their life. I have heard kaumatua express Tino Rangatiratanga as the ability to make decisions for yourself. I have also heard from kaumatua that it carries two limitations. First, don’t hurt yourself. Second, don’t hurt others. At first glance, if you accept what I have heard, Tino Rangatiratanga is not the complete individual autonomy which is an underlying assumption of the Act. That is a clear second issue.

Hospital bed

I rely on the popular question in the whakataukī, which is often attributed to Meri Ngaroto: “he aha te mea nui o te ao?” – “what is the most important thing in the world?”

I rely on the answer in that same whakataukī being: “he tangata, he tangata, he tangata” – “it is people, it is people, it is people”.

But this is a situation where I considered it appropriate to go beyond one whakataukī, and in doing so cast the proverbial new fishing net – “ka hao te rangatahi”. Accordingly, I have crafted as part of this article two whakataukī. In doing so I undersand whakataukī can be many things. I hope they help to add richness to your existing worldview. Here they are primarily relied on in an attempt to give added insight into tikanga Māori relevant to the article:

“Ka mamae tētahi, ka maimai he aroha ki a tātou katoa” – “when one of us hurts, we all hurt and we all need to heal”.

“Ko te toikura, ko te toitāngata, me maumahara, kei pō, kei pōuri” – “people are the greatest wealth/treasure, this we must remember, for when we lose them, (especially elders and tamariki), we indeed are poorer for it.”.

If we accept that people are of worth, have significance in the world and their mauri is critical, we may need to consider a Tino Rangatiratanga for each person without limitation. Yet that also poses a problem because to consider assisted dying legislation as an issue of individual autonomy denies that as humans, we must remember that we are part of a much larger group with complex connections.

Tino Rangatiratanga is not the complete individual autonomy which is an underlying assumption of the Act

For Māori, there is the view that those connections go further and extend beyond whānau, hapū, iwi and tupuna to maunga, awa, roto, moana, ngahere, atua and more. As evidence of this the question, ko wai au? – who am I? often answered with pepeha immediately springs to mind. That is because at times it is rather the literal statement ko wai au – I am living water, I am wairua, I am a reflection of my tupuna. What role do whakapapa, wairua and pepeha connections have in a decision to end one’s life? Strictly speaking under the Act as written, nothing. You can only be encouraged, but not required, to discuss your choice with others (for example, family members, friends and counsellors). This is a troubling and polarising position to adopt where tikanga would see the existence of all these people and elements as interconnected.

Third, about people who do make this decision, how do we support whānau around such a choice? How do we address any whakamā? I, like some, will have noted that the decisions to end a life will be confidential. The Act places trust in the SCENZ and the oversight of a medical ethicist and health practitioners. That doesn’t really address the need for cultural support and the Act is absent of the need for people to be kept ‘culturally safe’. A tikanga Māori expert panel should have been appointed or a Māori body given at least some level of oversight. If it is not apparent to you from the plain wording of the Act, then rather the absence of that expert panel or body indicates to me that tikanga Māori was, at most, simply ‘on the periphery’ of the drafter’s mind. That is very disappointing. It is not at all reflective of a Tiriti partnership towards better outcomes for Māori. That Māori oversight will be critical where there could be a need to discuss how such a choice to end one’s life influences our practices, particularly around mate, tūpāpaku, tangihanga and pāmamae. Having someone knowledgeable available to all people and especially Māori, should not have ever been left to the wayside in the Act.

Fourth, this is not an exhaustive article and the further issues number many. Consider how the Act may proffer, unknowingly, for patients or medical professionals to become agents of Aitua. For some Māori, it is te ringa o Aitua alone which should claim a life. Aitua being the miscarriage of Rangi and Papa in some pūrākau. To take one’s own life here could be problematic if it violates tikanga that has an underlying philosophical basis making change very difficult. How is that addressed in this Act? Consider further, whether “wairua” has been considered at all during the drafting of the Act? The mere disbelief of others does not change the experiences for Māori and others for whom wairua can be an ongoing (and no doubt for some a post-death or eternal) part of their reality. Certainly, all these issues need a forum for further korero. I, for one, consider that our Māori voices are not reflected in the Act itself.

If I am wrong in that regard, I make the passing comment that evidence of specific Māori consultation or even a tikanga panel as I have envisioned was not easy to find. A report of some kind could make a huge difference here as I suspect not many lawyers, let alone whānau, will have the time to research beneath the surface. I advocate in this article that a more tailored approach was needed. If information is not made accessible to Māori, then it is unlikely representative views could be ascertained anyway; especially beyond those of us who, as what I suspect are a continuing minority as a Māori, in that we hold a ‘higher education’ from universities. I, for one, am particularly interested, given their immense value in what both our kaumatua and our tamariki think on this Act and, more importantly, why. If a lawyer, or rather any person, is of the view that either a kaumatua (elder) or a tamaiti (a child) might not have something valuable to say, that’s a reflection of their worldview and it goes completely against the tikanga I was raised in and which I have briefly engaged in this article.

It may be appropriate for marae to accommodate debate on this Act. But that denies the reality that we have to remember that Māori, although a minority today, have to actually live in the legal world we make through our practice here in Aotearoa. When we go to other countries, we have to abide by their laws. We know this. We also have to remember that when you come to Aotearoa it is no different. There is a level of buy-in to the existing tikanga you will find here.

To be clear, the consideration of tikanga Māori as a critical lens should become the norm when drafting, analysing or applying Acts. This is even more important when we are faced with any fundamental societal shift of this level, which may be at odds with tikanga Māori. If you won’t take it from me, at least consider the Court’s approach in the Peter Ellis case as evidence of that emerging truth. I have no doubt, the law of defamation may be visited upon by such an approach shortly. Watch this space.

In conclusion, I do not profess to have any answers and I respect that many, including Māori, may vote either way on this referendum. This article’s intent was only to raise some potential issues in the hope that the inevitable discussions by lawyers, Judges and, more importantly, whānau might be assisted. If I have at all achieved that, this article has fully served its purpose.

Nā Edmond Carrucan (Ngāti Hako, Ngāti Pāoa, Ngāti Porou). Special thanks goes out to both Hollie Sanders, Katarina Riini-Ehau and their respective whānau. He mihi mō te whakanuia o te tuhinga nei, ka puta noa te ihu, ka puta, ka ora.

Lawyer Listing for Bots