I often hear the words disability and disabled. I am no expert in such terms. Nor am I someone who possesses intimate first-hand experience of the daily meaning of such terms. However, when I heard these words, disability and disabled, I am troubled because that is not how my iwi talks about people.

But before we dive deeper, I want to start with a brief reflection on words from Te Kooti. Most ironically perhaps because we call all Courts Kōti. This is ironic, because in my tribe we use tohutō (macrons) or double vowels interchangeably (at times).

Accordingly, for me, the name Te Kooti, is potentially immortalised in every Court in this country. I have often thought, even if unintended, that it is ‘he kura huna’ (a hidden treasure) of all our Courts. That perhaps even hidden right along with Te Kooti is hidden perhaps, his most widely known whakaaro:

❝ Ka kuhu au ki te ture,
hei matua mō te pani ❞
I seek refuge in the law, for it is
a parent of the oppressed

This whakataukī, if nothing else, evidences a powerful belief in law. It speaks to the very essence of law and access to justice. It articulates a belief that law will be honest, right and fair. That it will be a parent, in the sense that it will actively protect, consistently care and dare I say deeply love those under it.

This whakatukī envisions a law committed to relational accountability. A law that will enter into the experiences of those who suffer and struggle.

In other words, we are in a sense subject to the law and the subject of the law.

This is a law beyond ‘black letter’. It personifies the law as a parent who can say “I understand” and when there is a problem for their children say “I’ll handle this.” It is also why the law has been called paternal in some legal traditions and maternal in others.

‘Black letter’ lawyers can know this ‘parentalism’, if you will, as the protection of rights that run so deep in legal precedents, that even Parliament may not be able to oust them. These include in exhaustively the right to a fair trial, a right to remain silent when arrested and although given perhaps little weight in practice, the presumption of innocence.

‘Spirit of the law’ lawyers can know this “parentalism”, where Te Ao Māori knew a similarly overarching governance relationship of the world, in one form, through relationship with atua. This is not the only form, merely one form. I stress that there were many other such, spiritual and legal relationships.

For this article, I return again to the paepae of my marae. A seat beneath the great cosmos. I sit aside and beneath all my tūpuna. I have discomforting things to say, but they have told me:

❝ Māu anō e tama, karawhiua ❞
It is up to you again tama, do it

Atua Tama Kotahu

With deepest respect for them, I write this article.

I will first reflect on an atua (god) and then second explore concerns around what some term ‘disability’, ‘disabled persons’ and law or ‘disability and the law’.

As indicated, I reflect first on the atua Tama Kohatu. I see him presiding over the process and product of when a natural rock (i.e. a toka) is subject to any external force, usually by a human hand, breaking it apart. This is why Māori often call unveiling of crafted grave headstones ‘hura kohatu’, not ‘hura toka.’ Tama Kohatu works in unison with his whanaunga to form the world of rocks that we know. He gives power, sacredness and potency to the rocks in what some would call a broken state. Unsurprisingly, he has a memory and he can be found in most urupā, upon the graves. He often bears the photo of a loved one.

❝ Te kohatu te kaipupuri
o mahara, te kaitohu
o te tapu o te mate ❞
The stone is the holder of memory, the
signaller of the sacredness of the dead

The notion that disabled people have rights needing protection is not something I think any of us would dispute. What we sometimes need is signalling and reminding.

I consider the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) to be a success, particularly because in the preamble it first recognises “disability is an evolving concept” and second was concerned “about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination.” We need reminding that this is perhaps one starting point for us all. A truth across all practice areas.

Why do such terms as disabled trouble me?

As a lead in, the deficit connotation of such a word as ‘dis-abled’ troubles my mind for two reasons. First, ‘the person’ comes last in the words, ‘disabled person.’ For me, there may be no greater whakaaro Māori than “seeing the person first” and not merely with the eyes. For we are all people. We are all born and we all die. In such truths, we can achieve deep whanaungatanga.

If you won’t take it from me, consider support for this view from Moana Maniapoto (Ngāti Tūwharetoa, Ngāti Pikiao, Tūhourangi Ngāti Wāhiao), a well-known singer-songwriter and political activist. She has written of tangihanga, in 2015, for E-Tangata as:

“...a time to balance the ledger of kinship responsibility. And, at its heart, is whanaungatanga and manaakitanga.” [emphasis added]

Secondly, the very notion of being dis-abled is not one I was raised to know. I learned it from state schooling. At the marae, what I heard was that there was instead always something being given. A gift. I heard many such stories. One example included the blind being able to fall in love but not by what they see. This is something many of us will never know. To little Edmond, these stories were of superheroes, not disabilities.

Tangata Whaikaha

We have a popular kupu in my tribe Ngāti Hāko for a disabled person: “He Tangata.” More broadly, the term “Tangata Whaikaha” is being used also. I suggest you use such terms. Both put the person first. I hope you remember them. I urge you to understand them by affording respect and remembrance to all people.

I had a cousin, called Little John, who some would call disabled. He was a loving boy and when I was little he was perhaps one of my very first friends. I look back fondly on such happy memories. Little John didn’t have a violent bone in his body. He is a key reason for why I received one of my Māori names, “Tutu”. I cannot express how much this has formed my identity. And yet, the term disabled will never feel right. He changed my life forever. If that’s not a superpower, changing people’s lives, I really don’t know what is.

As a whānau, we all admired him for his strength, his mana and his ever-increasing tapu as he approached death, when he was young. He has long passed from this earth, but not from my memory, which I will describe as ‘Te Pae o Mahara.’ Nor has he disappeared from our sight, with his own whetu tapu (sacred star) that is celebrated by our whānau, each year.

I remember him and this story because my cousin was a tangata whaikaha. You might see that as normalising, but I see him when I close my eyes right now. I thank him and afford him the full respect I know he deserves.

❝ Moe mai rā Little John ❞
Rest in peace Little John

To be clear, I am not naive to the world, nor some of the more unsavoury types who live in it. You may have gained such an impression. I have seen some of the ways people mistreat the disabled, often just because they can. And some of those people then have the cheek to think the disabled person is the one with the problem. I disagree. I will not disown the teachings of my tūpuna. I know what is tika. I know who I am.

But do we know who we are, legally? Have we at times forgotten what is tika? I ask, because to know who you are within a Te Ao Māori lens is to have a sense of your ‘world’ and ‘environment’. Two words. Two different concepts.

I signal that we must not forget this is the same legal world that only recently repealed Part 4A of the New Zealand Public Health and Disability Act 2000. Section 70C in particular, caused so much trouble for whānau and tāngata whaikaha of all ethnicities. This section prevented whānau members from being paid if they cared for a loved one. How did we get here?

You might remember the case of Ministry of Health v Atkinson & Ors [2012] NZCA 184, where the Court of Appeal upheld that the Ministry’s policy of not paying parents where a non-family member would be paid was discriminatory on the basis of family status (at [139]). Further, the Court maintained that the discrimination against section 19 of the New Zealand Bill of Rights Act 1990 (NZBORA) was not justified with reference to section 5 (at [180]). The Court did not underestimate the cost implication of their findings (at [171]).

Shortly thereafter in 2013, Part 4A was introduced, under urgency. This is despite the then Attorney-General concluding that it limited rights and freedoms to an extent that could not be justified under section 5 of NZBORA. The amendment was introduced with the explanatory note that responding to the Atkinson case:

“...would result in unmanageable fiscal costs to the Government. In the absence of legislation, the Government’s policy would be unlawful and the Government could face a very large number of claims. The only feasible way of managing these risks is through legislation.” [emphasis added]

What angers me most is that fiscal costs came before families. That is unacceptable. I further challenge that introduction of Part 4A never aligned with section 3(1)(b) or section 4 of the Act.

To think if affected whānau members had been caring for a stranger, before 30 September 2020, the government would pay them but not if they were caring for their own whānau is sickening. Worse, under that repealed section, the government would pay a stranger to care for their whanaunga instead of them. When you see laws like this I ask if our laws care to empower whānau in Aotearoa.

At times, for me, it is a no. And a shameful no. This is because, we know if some government agencies were inclined towards whānau empowerment their single goal would be simple: to become smaller and work themselves out of jobs. Yet, on only one occasion, have I ever met a government lawyer, who shared this exact concern.

I signal that the UNCRPD, in that same preamble, was “convinced that the family is the natural and fundamental group unit of society.” Unless I have made a mistake here, it naturally seems nothing could be more fundamental than whānau empowerment by the law and lawyers.

What might lawyers learn from this?

We need to remove barriers for whānau and tangata whaikaha. We need to enter their experience. At times, we need to honestly admit as lawyers we might be the barriers too. We have all this knowledge, but what do we really have to show for it? We need to learn to consider what matters most and our very purpose in society.

I ask, “are we an honourable profession that seeks to protect those who need us and those who are most vulnerable?” Lawyers are certainly admitted to an honourable Court.

Or are we as some might ask “billing machines that live and die by six-minute increments?” We are humans, not robots. I accept we need to make a living. I want us to have jobs, just not at the expense of whānau and change that is beneficial to tāngata whaikaha.

Currently, although coming up for review, our ethical obligations are a starting point of sorts. There is no reason why tāngata whaikaha ought to receive a subpar service from any of us. But maybe, it is high time our obligations were made more specific. For those opposed, I challenge “Why wouldn’t lawyers have an obligation to specific groups, including tāngata whaikaha?” Afterall, you don’t have to be a lawyer. It’s a loaded choice.

On that, I consider that few tāngata whaikaha will really care how many hours lawyers bill at all. Your firm might. But I think it more likely that people will remember the times lawyers let them down, by name, face and disgrace. This is because lawyers have a privileged (and at times profitable) position in society.

We hold tools others cannot use. We occupy a space others cannot enter. We can seek change others would struggle to. Oftentimes people listen to us merely because we are lawyers. This is a power I urge us to all wield responsibly and with an eye to change.

One such beneficial change could be the inclusion of a term like, “tangata whaikaha”, into legislation, much like mana tamaiti being included into the amended Oranga Tamariki Act. Invisibility in law is a pain. It is felt. Including this term or one like it, is mana affirming, mana protecting and mana revealing.

I end this first reflection with this: We ought to be held to a high standard and not merely because it is in our client conduct and care rules.

I reflect second upon the atua Te Kūwatawata. I see him presiding over doorways everywhere I go. He is seated, watching over the doorway to some afterlife or to others an alternate realm some call ‘Rarohina’. He gives power, sacredness and potency to doorways, passage into other realms and access to hidden knowledge. Unsurprisingly, he has a memory and he is tied to the experience of some matakite. Te Kūwatawata is, perhaps for lack of better English words, somewhat like a great librarian. In this ‘library’ is treasured knowledge, not in books, but first and foremost, all legacies of whakapapa. For it is to papa, that we return, in one form or another through the door of death.

❝ Te Kūwatawata, kei tō
marumaru te uri kumea me te uri
whakairo a Hine Titama ❞
Te Kūwatawata, under your
protection are two daughters
of Hine Titama

There is a common thread being woven into this article around rights. The aspect I seek to emphasise now is protection and enforcement.

I do not seek to add deeper commentary around our disability support system being too complex. The law reform of the New Zealand Public Health and Disability Act 2000 discussed much earlier ought to plainly highlight this for you.

To nobody’s surprise, a 2016 report from Statistics NZ, found that Māori have higher-than-average disability rates. It also found that among Māori, a disability reduces the likelihood of being employed and educational achievement. As if systemic racism was not enough, life is even more difficult for tangata whaikaha Māori.

Tangata whaikaha advocate, Dr Huhana Hickey (Ngāti Tāhinga, Whakatōhea), when interviewed by Áine Kelly-Costello for a series called generations of change, made the following comments:

“I believe we have to have a tooth driven piece of legislation that is enforceable… we do not have that right now. And that is why so many people get away with so much abuse… For disabled people, I do not believe that it is good enough to just say that we should be voluntarily compliant. We must have mandatory rights… We do not get choice like the rest of society does… We don’t have choice of housing… in education… in jobs… where we live.”

“I think we need to be looking at that whole issue of Te Tiriti o Waitangi… What is Partnership? It means you stand alongside. We should have an indigenous parliament, to be honest that sits alongside the mainstream parliament... We don’t have that.”

These comments address the environment of who we legally are, right now. But, Dr Hickey is instead encouraging us to “start getting more disability rights based.”

The key word is “teeth.” This is in complete alignment even with Austinian jurisprudence that some argue underlies all sovereign-based legal systems. You might remember John Austin from law school, as keenly concerned with the consequences, the teeth, that makes us comply with the law. In his most famous 1832 text, The Province of Jurisprudence Determined, Austin remarks:

“The greater the evil to be incurred in case the wish be disregarded, and the greater the chance of incurring it on the same event, the greater, no doubt, is the chance that the wish will not be disregarded.” (original emphasis retained)

Now Austin accepts that there is no perfect threat, consequence or teeth. That is realistic. However, I submit that there is merit to the idea that further penalties for infringing the rights of tangata whaikaha would help ensure their rights are viewed more seriously. It is important that public services are made accountable here also.

To be clear, if Hickey or I thought that the protection of tangata whaikaha rights should be left to criminal law alone, we both would have said so. Besides, in the criminal context, as a victim, being disabled will realistically be merely an aggravating factor of offending. Nothing more.

There was something that seemed inherently unfair about this to me when I was a Crown prosecutor, thinking back on one case in particular. Tangata whaikaha, in my humble view, ought to be represented by more than that. I have even wondered if crimes against them might warrant a new and separate offence, particularly in the context of violence. I leave this idea for those I believe are better positioned to comment, such as Dr Hickey.

What does this discussion mean for lawyers?

It means listening to what tāngata whaikaha want and what they are telling us. With brief reference back to around the time of my article in LawTalk 943 (re the End of Life Choice Act 2019) I wondered whether the public listened very well to unique tāngata whaikaha concerns.

Their concerns, like Tikanga, were on the periphery of the drafter’s mind. I wonder if this is often the case. Austin would be proud as he did believe in a “law set by political superior to political inferiors”. We ought to be ashamed. This style of lawmaking excludes and is painful to see.

Reread a counter position from Tikanga in the words of Te Kooti. You will see protection and empowerment.

Being on that periphery, I can only hypothesise results because law is misconceived as ‘the play’ of the able bodied, able minded and western person (whatever all that really means), when it is instead the very means by which we all find refuge. To remind us, Te Kooti called law: heimatua mō te pani – a refuge for the oppressed. Te Kooti has spoken of the law being like a parent. Remember this. It is impossible to write everything you need to know about tangata whaikaha and the law.

Some serious questions must become: Is law only for the benefit for some? How do we empower tangata whaikaha and whānau? What other reforms or thinking is needed to remove unhelpful barriers?

The best I can do in parting from this article is address that last question. I turn with a listening ear to comments around from tāngata whaikaha about Disability Rights and the Pandemic. These comments are contained in the report ‘Te Whakatinana i ngā Tika Hauātanga i te wā o te Urutā’, that:

“A number of people felt that their human rights had been breached, with tikanga being overlooked and, in some cases (such as tangihanga), banned.”

“Serious concerns were raised at the possibility of Police being able to enter marae without notice, based on historical context.”

“The ‘bubble’ in a Māori context (whānau, hapū, and iwi) was confusing to some, as people tried to negotiate who should be included in and excluded from their respective bubbles.”

If you listen, including with the ear in your heart, that report holds an answer to each of these concerns, namely:

“Representative tāngata whaikaha Māori organisations need to be at the decision making table and actively involved in a meaningful way. This will ensure tikanga is protected and essential information is trusted.”

Kia kaha rōia mā, it is amazing what we can all learn when we listen and when we ask. But these are two things, we can all do better.